| Matter of DeLaCruz v DiNapoli |
| 2009 NY Slip Op 08745 [67 AD3d 1297] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Martha DeLaCruz, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Kavanagh, 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 respondent whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner was employed as a criminal investigator for the Westchester County DistrictAttorney's office. During a training program in dignitary protection, petitioner participated in anexercise wherein she played the role of a dignitary and another participant guided her away froman unruly crowd and into a waiting car. During the exercise, the other participant stumbled andfell, pulling petitioner to the ground and causing her to sustain injuries. Petitioner's ensuingapplication for accidental disability retirement benefits was denied. Following her request for ahearing and redetermination, a Hearing Officer concluded that petitioner's fall constituted anaccident under the Retirement and Social Security Law. Respondent, however, disagreed anddenied the application, finding that the incident did not constitute an accident within the meaningof Retirement and Social Security Law § 607-e. Petitioner thereafter commenced thisCPLR article 78 proceeding.[*2]
It is beyond dispute that "[a]n accident within themeaning of the Retirement and Social Security Law is a sudden and extraordinary event that isunrelated to the ordinary risks of employment" (Matter of Santorsola v McCall, 302AD2d 727, 728 [2003]; accord Matter of Magrino v DiNapoli, 64 AD3d 868, 868-869[2009]). In this case, petitioner was newly assigned to act as the District Attorney's driver andbodyguard, and she was sent to dignitary protection training by her employer in order to prepareher for that assignment. The exercise in which she was injured was a part of that training andparticipants had been previously instructed on how to act during it. In short, the incident inquestion resulted from "a training program constituting an ordinary part of petitioner's job dutiesand the normal risks arising therefrom" (Matter of Felix v New York State Comptroller,28 AD3d 993, 994 [2006]). The fact that another participant's misstep led to petitioner's injuries"did not transform the incident into an accident within the meaning of the Retirement and SocialSecurity Law" (id.; see Matter of Stimpson v Hevesi, 38 AD3d 979, 980 [2007];Matter of McKenna v Hevesi, 26 AD3d 584, 585 [2006]) and, as such, respondent'sdetermination is supported by substantial evidence.
Rose, J.P., Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.