| Matter of Stymiloski v DiNapoli |
| 2009 NY Slip Op 05675 [64 AD3d 865] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Paul A. Stymiloski, Petitioner, v ThomasP. DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Garry, 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 whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer employed by the Village of Ossining in Westchester County, wasengaged in a routine patrol at 6:00 a.m. on December 20, 2005 when he observed that a vehicleparked near the entrance of a 24-hour pharmacy was on fire. He made a radio call for assistancefrom the local fire department and, following a brief attempt to extinguish the fire himself,entered the store to locate the car's owner. Trying to minimize the likelihood that the fire wouldspread to the building, he and the owner subsequently pushed the automobile away from thestore's entrance. After fire department personnel arrived and the fire was fully extinguished,petitioner and two firefighters—at the direction of the fire chief who feared that the firemight reignite—began pushing the vehicle even farther away from the building. Whiledoing so, petitioner slipped and fell on ice that had formed as a result of the fire department's useof water to put out the fire. As a result of his fall, petitioner sustained an injury to his leftshoulder [*2]and filed applications for accidental disability andperformance of duty disability retirement benefits. Although petitioner was awardedperformance of duty disability retirement benefits, his application for accidental disabilityretirement benefits was denied. Petitioner's request for a redetermination was granted and, after ahearing, a Hearing Officer concluded that he did not sustain an accident within the meaning ofRetirement and Social Security Law § 363. Respondent adopted the Hearing Officer'sfindings, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. A petitioner bears the burden of proving entitlement to accidental disabilityretirement benefits and respondent's determination will be upheld if it is supported by substantialevidence (see Matter of Hughes vHevesi, 56 AD3d 934, 935 [2008], lv denied 12 NY3d 711 [2009]). Moreover,"when a petitioner sustains an injury in the course of performing ordinary employment duties,considering the particular employment in question, it is not an accidental injury" (Matter of Baron v DiNapoli, 57 AD3d1202, 1203 [2008]). Here, petitioner informed the Hearing Officer that both moving the carand following the direction of a fire chief at the scene of a fire were within the realm of hisnormal responsibilities as a police officer. He also testified that when the incident occurred itwas approximately 19 degrees outside and he witnessed the fire department douse the fire withwater. Under such circumstances, we perceive no basis to disturb respondent's conclusion thatpetitioner's injury resulted "from an expected or foreseeable event arising during theperformance of routine employment duties," which does not merit an award of benefits basedupon this provision (Matter of O'Brien vHevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]).
Cardona, P.J., Spain, Rose and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.