| Matter of Lorenzo v DiNapoli |
| 2009 NY Slip Op 08757 [67 AD3d 1311] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael J. Lorenzo, Petitioner, v ThomasP. DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a detective employed by the City of Yonkers Police Department, sustained aninjury to his neck while exiting a police car in September 2003. He performed light-duty workfor approximately 10 weeks after the incident, but has not returned to work since November 25,2003 and applied for accidental disability retirement benefits shortly thereafter. Followingdisapproval of his application, he requested a hearing and redetermination. After an initialhearing, petitioner amended his application, asserting that two earlier incidents—one in1991 and one in 1992—contributed to the injury he sustained in 2003. A second hearingwas held and a Hearing Officer subsequently concluded that the September 2003 incident did notconstitute an accident within the meaning of Retirement and [*2]Social Security Law § 363 and that petitioner's neck injurywas not caused by either of the two prior incidents. The Hearing Officer's denial of petitioner'sapplication was upheld by respondent Comptroller, prompting this CPLR article 78 proceeding.
We confirm. "[A]n injury which occurs without an unexpected event as the result of activityundertaken in the performance of ordinary employment duties . . . is not anaccidental injury" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund ofPolice Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). Here, in 2003, petitionerwas returning to the squad room after interviewing a witness and parked his unmarked vehicletoo closely to the police car occupying the adjacent parking spot. Unable to fully extend thevehicle's door, petitioner "cracked [his] head up on the doorjamb" while "forcing [himself] upout of the seat to get out of the car." Inasmuch as petitioner testified that his job duties includeresponding to crime scenes, rounding up witnesses and "go[ing] out and arrest[ing] badguys"—activities that necessarily require his getting into and out of a policecar—substantial evidence supports the Comptroller's determination that the eventprecipitating petitioner's neck injury was a risk inherent in the performance of his routine duties(see Matter of Quigley v Hevesi, 48 AD3d 1023, 1024 [2008]).
The Comptroller's determination that petitioner failed to establish that his neck injury wascaused by the 1991 and 1992 incidents is similarly supported by substantial evidence. Indeed,during his direct examination at the initial hearing—prior to amending his application soas to include those incidents—petitioner testified that there was nothing wrong with hisneck before he injured it in 2003. Moreover, medical records submitted by Leon Sultan, aboard-certified orthopedic surgeon who examined petitioner on behalf of respondent New YorkState and Local Employees' Retirement System, indicate that neither incident contributed topetitioner's neck injury. Accordingly, giving due deference to the Comptroller's credibilityresolutions, we perceive no basis on which to disturb his determination (see Matter of Stern vDiNapoli, 57 AD3d 1076, 1078 [2008]; Matter of Farrell v New York StateComptroller, 57 AD3d 1081, 1082-1083 [2008]).
Cardona, P.J., Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.