| Matter of Grutzner v Murray |
| 2009 NY Slip Op 08934 [68 AD3d 1231] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Paul T. Grutzner, Petitioner, v Kevin F. Murray, asDeputy Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Stein, 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 had been employed as a police officer for approximately 40 years when he retiredfrom his position as a detective sergeant for the Westchester County Department of Public Safetyin 2003. He submitted an application for accidental disability retirement benefits 10 monthslater, asserting that he was permanently disabled due to work-related injuries sustained as theresult of three incidents occurring in 1963, 1982 and 1986. After his application wasdisapproved, petitioner requested a redetermination and a hearing was held. Following thehearing, a Hearing Officer determined that none of the incidents constituted an accident withinthe meaning of Retirement and Social Security Law § 363 and denied petitioner'sapplication. Respondent adopted the Hearing Officer's findings, prompting this CPLR article 78proceeding.[*2]
We confirm. A petitioner bears the burden of provingthat his or her injuries were accidental (see Matter of O'Brien v New York State Comptroller, 56 AD3d937, 938 [2008], lv denied 12 NY3d 708 [2009]), that is, the result of a "sudden,fortuitous mischance, unexpected [and] out of the ordinary" (Matter of Starnella vBratton, 92 NY2d 836, 838 [1998] [internal quotation marks and citations omitted]). To thatend, "[a]n accident will not be found when the event precipitating the injury is a risk of theapplicant's ordinary employment duties" (Matter of Coon v New York State Comptroller, 30 AD3d 884, 885[2006], lv denied 7 NY3d 717 [2006]). Here, petitioner testified that he was performingthe normally expected duties of a police officer when each of the incidents resulting in hisinjuries occurred. In 1963, petitioner was attempting to ascend the back stairwell of adelicatessen—investigating a possible burglary in progress—when he fell afterplacing his knee on the third stair (because the first two stairs were missing). He was aware thatthe stairs were damaged prior to climbing them and could not recall whether he simply lost hisfooting. Accordingly, respondent could rationally conclude that petitioner's fall was the result ofhis own misstep and not caused by an unexpected event (see Matter of Batista v New York State Comptroller, 56 AD3d927, 928-929 [2008], lv denied 12 NY3d 708 [2009]).
In 1982, petitioner was riding a motorized dirt bike as part of a parkland motorcycle securitydetail and fell when the bike "kicked-out" while descending a hill strewn with rocks and gravel.Petitioner elected to traverse that route because he "had done so many times before" and it "wasthe easiest way." Petitioner, an accomplished motorcycle rider, had ridden down the hillapproximately three times earlier that day and the vehicle was designed to travel over dirt, rocksand gravel. He was unable to explain why the incident occurred. Under these circumstances,respondent reasonably concluded that the incident resulted from an activity undertaken in theperformance of ordinary employment duties (see Matter of Kenny v DiNapoli, 50 AD3d 1445, 1445-1446[2008], affd 11 NY3d 873 [2008]; Matter of McLaughlin v McCall, 253 AD2d940, 940 [1998]). Similarly, in 1986, petitioner was injured after attempting to kick open alocked door while executing an arrest warrant. Given that he had done so 150 to 200 timesbefore, "the incident was not the kind of sudden and unexpected event that constitutes anaccident" (Matter of Bottino v Murphy, 209 AD2d 335, 336 [1994]). In view of theforegoing, we conclude that respondent's determination is supported by substantial evidence andperceive no basis on which to disturb it.
Mercure, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.