| Matter of Rolon v DiNapoli |
| 2009 NY Slip Op 08746 [67 AD3d 1298] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kenneth Rolon, 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.
Petitioner, a police officer employed by the City of Newburgh Police Department, sustaineda back injury in February 2005 while changing a flat tire on his patrol car. His subsequentapplication for accidental disability retirement benefits was denied on the ground that theincident did not constitute an accident within the meaning of Retirement and Social SecurityLaw § 363. Petitioner requested a hearing and redetermination, following which a HearingOfficer denied the application on the same ground. Respondent adopted that decision in relevantpart, prompting this CPLR article 78 proceeding.
We confirm. Petitioner bears the burden of demonstrating that his disability arose out of anaccident as defined by the Retirement and Social Security Law, and respondent's determinationin that regard will be upheld if supported by substantial evidence (see Matter of Baron vDiNapoli, 57 AD3d 1202, 1203 [2008]). Under settled law, "an injury which occurs [*2]without an unexpected event as the result of activity undertaken inthe performance of ordinary employment duties, considered in view of the particularemployment in question, is not an accidental injury" (Matter of Lichtenstein v Board ofTrustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010,1012 [1982]; accord Matter of Confreda v New York State Comptroller, 56 AD3d 938,939 [2008], lv denied 12 NY3d 708 [2009]). Here, petitioner testified that a mechanicwould ordinarily be dispatched to change a flat tire on a patrol car and that he had never changeda flat tire before. However, petitioner's watch commander had directed him to change the tirewhen a mechanic proved unavailable. Petitioner further testified that his duties includedfollowing the orders of his watch commander, and that the job description of a Newburgh policeofficer includes a duty to maintain department equipment. Accordingly, substantial evidencesupports respondent's determination that petitioner was injured while performing a task inherentin his regular employment duties (see Matter of Stevens v New York State Comptroller,299 AD2d 644, 644-645 [2002]; Matter of Panek v Regan, 81 AD2d 738 [1981]).
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.