| Matter of Robinson v DiNapoli |
| 2008 NY Slip Op 08596 [56 AD3d 943] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of George C. Robinson, Petitioner, v ThomasP. DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondents.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a 30-year veteran of the City of Yonkers Police Department in WestchesterCounty, retired in February 2006. Approximately one month earlier, petitioner applied foraccidental disability retirement benefits alleging that he was permanently disabled as the result ofan incident that occurred in January 1994 when he slipped on an exposed electrical cord that wasplaced next to a conduit and injured his back. Following disapproval of his application, petitionersought a hearing, at the conclusion of which a Hearing Officer found that the January 1994incident did not constitute an accident within the meaning of the Retirement and Social SecurityLaw. Respondent Comptroller made a supplemental finding of fact and otherwise accepted theHearing Officer's findings and conclusions, prompting petitioner to commence this proceedingpursuant to CPLR article 78 to challenge that [*2]determination.
Prior to petitioner's arrival at work on the day in question, the heat went out and someoneplaced an electric heater in the well of petitioner's desk. The cord for the heater ran across thefloor and plugged into an outlet located to the right of petitioner's desk. After traversing the pathbetween the desk and the outlet 10 to 20 times over the course of the five hours that petitionerwas on duty before sustaining his injury, petitioner stepped on the exposed cord, slippedbackwards and felt pain in his back and right leg. Petitioner missed two to three weeks of workbut, it would appear, thereafter returned to work.
"[A]n incident does not qualify as an accident justifying the award of accidental disabilityretirement benefits where the injury results from an expected or foreseeable event arising duringthe performance of routine employment duties" (Matter of O'Brien v Hevesi, 12 AD3d 895, 896 [2004], lvdismissed 5 NY3d 749 [2005]; seeMatter of Brennan v New York State & Local Empls. Retirement Sys., 50 AD3d 1374,1375 [2008]; Matter of Stimpson vHevesi, 38 AD3d 979, 980 [2007]; Matter of Marsala v New York State & Local Employees' RetirementSys., 14 AD3d 984, 985 [2005], lv denied 4 NY3d 709 [2005]). The HearingOfficer expressly found that petitioner was aware of both the heater and the electrical cord thatran across the open area next to petitioner's desk—a finding that is entirely reasonable onthis record. According due deference to this credibility determination (see Matter of McCabe v Hevesi, 38AD3d 1035, 1036 [2007]), we find that there is substantial evidence to support theComptroller's conclusion that petitioner's injury was the product of his own misstep.
Spain, Rose, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.