| Matter of Welsh v New York State Comptroller |
| 2009 NY Slip Op 08119 [67 AD3d 1167] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of John Welsh, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
McCarthy, J. 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 police officer with the Suffolk County Police Department, sustained injurieswhen an emotionally disturbed man that he was escorting suddenly lunged at him. Petitioner'ssubsequent application for accidental disability retirement benefits was denied and he requesteda hearing and redetermination.[FN*]The Hearing Officer recommended that the claim be denied on the ground that petitioner had notsustained an accident within the meaning of the Retirement and Social Security Law.Respondent Comptroller accepted the Hearing Officer's recommendation and denied petitioner'sclaim. This CPLR article 78 proceeding ensued.
The determination should be confirmed and the petition dismissed. For purposes ofaccidental disability retirement benefits, the underlying accident must be "a sudden, fortuitous,[*2]out of the ordinary and unexpected event that does not resultfrom an activity undertaken in the performance of regular or routine employment duties"(Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000]). The Comptroller hasexclusive authority to determine whether an accident occurred within the meaning of Retirementand Social Security Law § 363, and his determination must be sustained if it is supportedby substantial evidence (see Matter ofZuckerberg v New York State Comptroller, 46 AD3d 1057, 1058 [2007], lvdenied 10 NY3d 712 [2008]).
The record reflects that petitioner and his partner escorted a reportedly suicidal man from theman's home to the psychiatric ward of a hospital. Petitioner had previously participated in similarescort duties, and his partner testified that sometimes the subjects in such escort cases were calm,and sometimes they were not. This man did not act in an aggressive manner and did not resistwhen the officers handcuffed his arms behind his back before transporting him to the hospital. Atthe hospital, the man remained under the officers' control in a small police waiting room when,still in handcuffs, he suddenly ran across the small room and lunged at petitioner, causingpetitioner to fall and sustain injuries. Petitioner's partner and hospital security guards quicklypulled the man off of petitioner. The entire incident lasted a minute or less. No charges werebrought against the emotionally disturbed man.
The Comptroller rejected petitioner's claim that he is entitled to accidental disabilityretirement benefits because he was injured as a result of an assault (see Matter ofStefanelli, Mar. 11, 2002, reg. No. 3344419-1, H.C. No. 01-0237), as opposed to physicalcontact in the course of restraining a disruptive individual (see e.g. Matter of Ammann v New York State Comptroller, 13 AD3d858, 858-859 [2004], lv denied 5 NY3d 702 [2005]), finding that as a police officer,petitioner was expected to control and restrain potentially violent and psychotic patients (seeMatter of Nedwick v McCall, 308 AD2d 653, 653-654 [2003]; see also Matter of Clair vRegan, 89 AD2d 663, 663-664 [1982], lv denied 57 NY2d 608 [1982]). Althoughthere is evidence in the record that would support a conclusion that petitioner was injured as theresult of an assault, the mere presence of such evidence does not undermine the Comptroller'sdetermination that petitioner was injured by physical contact of the sort inherent in the routineperformance of petitioner's duties (seeMatter of Wise v New York State Comptroller, 38 AD3d 1032, 1034 [2007], lvdenied 9 NY3d 811 [2007]; Matter of Ammann v New York State Comptroller, 13AD3d at 859; Matter of Pugliese v New York State & Local Empls. Retirement Sys., 161AD2d 1095, 1095 [1990]). Consequently, we find no reason to disturb the Comptroller'sdetermination.
Rose, J.P., Stein and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *: Petitioner's application forperformance of duty disability retirement benefits was granted.