| Matter of Magrino v DiNapoli |
| 2009 NY Slip Op 05677 [64 AD3d 868] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard M. Magrino, Sr.,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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.
In 2003, petitioner was injured when he tripped over an air hose and fell. Petitioner'sapplication for accidental disability retirement benefits was denied, and he requested a hearingand redetermination. Following that hearing, the Hearing Officer denied petitioner's application,finding that the incident did not constitute an accident within the meaning of Retirement andSocial Security Law § 63. Respondent adopted the Hearing Officer's findings and thisCPLR article 78 proceeding followed.
We confirm. It is well settled that "[a]n accident within the meaning of the Retirement andSocial Security Law is a sudden and extraordinary event that is unrelated to the ordinary risks ofemployment" (Matter of Santorsola v McCall, 302 AD2d 727, 728 [2003]; see Matter of Kenny v DiNapoli, 11NY3d 873, 874 [2008]). As a result, injuries that arise out of an employee's own misstep orinattention will not merit an accidental disability determination (see [*2]Matter of Zuckerberg v New York State Comptroller, 46 AD3d1057, 1058 [2007], lv denied 10 NY3d 712 [2008]; Matter of Santorsola vMcCall, 302 AD2d at 728). Here, petitioner was employed as an equipment maintenancemanager at a municipal garage and he tripped over an air hose that lay in a hallway there.Although he denied seeing an air hose or other tools lying on the floor outside of work areasprior to his injury, it was not unusual for tools to be on the floor in work areas and he admittedthat such could occur elsewhere and that employees should be aware of their surroundings. Asthis proof suggests that petitioner's injury resulted from his own inattention or misstep,respondent's determination is supported by substantial evidence and will not be disturbed (see Matter of Melendez v New York StateComptroller, 54 AD3d 1128, 1129 [2008], lv denied 12 NY3d 706 [2009]; Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]).
Cardona, P.J., Rose, Kane and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.