| Matter of Baron v DiNapoli |
| 2008 NY Slip Op 09887 [57 AD3d 1202] |
| December 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Raymond A. Baron, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a firefighter for the Village of Mamaroneck Fire Department in Westchester County,was injured on November 11, 2002 while responding to a structure fire. On that date, as he waspreparing to enter the building, petitioner noted a misplaced supply hose and, with no one available toassist him, he got on his hands and knees and moved the hose, which weighed between 100 and 150pounds, approximately five feet to its proper position. Petitioner began experiencing health problems inthe days that ensued and, after his physician referred him to a cardiologist, petitioner ultimately requiredquintuple bypass surgery and was rendered permanently disabled. Petitioner filed an application foraccidental disability and performance of duty disability retirement benefits and, after a series ofproceedings, was granted performance of duty disability benefits, but denied accidental disabilitybenefits upon the ground that he did not sustain an accident within the meaning of Retirement and SocialSecurity Law § 363. Petitioner [*2]then commenced thisproceeding pursuant to CPLR article 78 seeking to challenge respondent's denial of his application foraccidental disability retirement benefits.
A petitioner bears the burden of demonstrating that his or her disability was the result of anaccident within the meaning of Retirement and Social Security Law § 363, and respondent'sdetermination in that regard will be upheld if supported by substantial evidence (see Matter of Sweeney v Hevesi, 50 AD3d1366, 1366 [2008]; Matter of Pryor vHevesi, 14 AD3d 776, 776 [2005]). An accident has been defined as a "sudden, fortuitousmischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein vBoard of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d1010, 1012 [1982] [internal quotation marks and citation omitted] see Matter of Pryor vHevesi, 14 AD3d at 776). Thus, when a petitioner sustains an injury in the course of performingordinary employment duties, considering the particular employment in question, it is not an accidentalinjury (see Matter of Pryor v Hevesi, 14 AD3d at 776; Matter of Mirrer v Hevesi, 4 AD3d 722, 723 [2004]).
Here, petitioner alleges that his injury was the result of an accident, inasmuch as the injury occurredwhen he overexerted himself while moving a supply hose. However, petitioner's job description, ascontained in the record, calls for physical stamina and enumerates laying and connecting hose lines asexamples of petitioner's duties. As such, we find that substantial evidence supports respondent'sdetermination that petitioner was injured in the course of performing a task that is inherent in afirefighter's regular duties and that an accident did not occur (see Matter of Pryor v Hevesi, 14AD3d at 777; Matter of Tuper v McCall, 259 AD2d 941, 942 [1999]; Matter of May vRegan, 159 AD2d 769, 769-770 [1990]).
Peters, J.P., Rose, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.