| Matter of Allesandro v DiNapoli |
| 2009 NY Slip Op 10018 [68 AD3d 1592] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Angelo M. Allesandro,Petitioner, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski 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 applications for accidental and performance of dutydisability retirement benefits.
In February 1993, while responding to a disturbance in the special housing unit admissionsroom at a state correctional facility, petitioner, a correction officer, slipped and fell on a sectionof floor that was wet with snow and slush, injuring his right knee. In October 1996, petitionerinjured his right arm, shoulder and wrist while manually operating a 300-pound cell door.Petitioner thereafter applied for accidental and performance of duty disability retirementbenefits. After a hearing, the February 1993 incident was determined to be an accident forpurposes of the Retirement and Social Security Law, but the remaining claims were denied.Upon review, respondent Comptroller denied all applications for benefits, specifically findingthat the February 1993 incident did not constitute an accident. Petitioner commenced thisproceeding to review the Comptroller's determination and the matter was transferred to this [*2]Court.
We confirm. The record contains substantial evidence that petitioner's injuries were notsustained "by, or as the natural and proximate result of any act of any inmate" (Retirement andSocial Security Law § 607-c [a]; see Matter of Wright v Hevesi, 46 AD3d 1184,1184 [2007]). Substantial evidence also supports the Comptroller's conclusion that petitioner'sinjuries were not the result of "a sudden, fortuitous mischance, unexpected, out of the ordinaryand injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fundof Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]).
With respect to petitioner's 1993 slip and fall injury, there is simply no evidence in therecord of any contributory act by any inmate, so no basis for performance of duty disability wasestablished (see Retirement and Social Security Law § 607-c [a]). As topetitioner's claim for accidental disability retirement benefits, petitioner admitted that, on thatwintry day, "the floor was obviously wet, slushy, [with] some ice" because people coming fromoutside stamped their boots in that entry area. Petitioner also acknowledged having seen suchconditions in that area prior to the date of this incident. Accordingly, we find no reason to disturbthe Comptroller's determination that petitioner suffered no "sudden, fortuitous mischance" andthat his slip and fall did not result from an unexpected event (see Matter of Confreda v NewYork State Comptroller, 56 AD3d 938, 939 [2008], lv denied 12 NY3d 708 [2009]).
With respect to the 1996 injury, petitioner testified that he felt threatened by an inmate'sfailure to follow instructions when the automatic door to the inmate's cell malfunctioned in apartially open position. The inmate initially complied with instructions to stand in the far cornerof the cell and face away from the door with his arms folded across his chest. However, when thedoor jammed, the inmate turned around, dropped his hands and started to move towardpetitioner. Petitioner claims that he was then injured by the strain of swiftly and manuallyclosing the door.
In contrast to petitioner's testimony, however, the employer's report of the incident indicatedthat petitioner was injured when he "attempted to open a cell door that failed to openelectronically" (emphasis added). No evidence was submitted of any disciplinary action againstthe prisoner for failing to follow petitioner's orders. " 'It is well settled that any apparentinconsistency between a petitioner's sworn testimony and written documents presents acredibility issue for resolution by the finder of fact' " (id. at 940, quoting Matter ofHamilton v Hevesi, 28 AD3d 965, 966 [2006]; see Matter of Arcuri v New York State &Local Retirement Sys., 291 AD2d 621, 622-623 [2002]). Substantial evidence thereforesupports the Comptroller's determination that any connection between the inmate's actions andpetitioner's injury was too attenuated to afford coverage under the statute (see Matter ofDavis v DiNapoli, 56 AD3d 933, 934 [2008]; Matter of Egiziaco v Office of Comptrollerof State of N.Y., 15 AD3d 747, 748 [2005]; Matter of Escalera v Hevesi, 9 AD3d666, 667 [2004], lv denied 3 NY3d 608 [2004]).
Petitioner also testified that all of the cell doors in the special housing unit wouldperiodically malfunction. These malfunctions occurred "a few times a week" and it was notunusual for officers "to have to give the door a couple of whacks to get it to move." Suchtestimony supports the Comptroller's conclusion that petitioner's injury did not result from anunexpected or unforeseen event or "accident" within the meaning of the Retirement and Social[*3]Security Law (see Matter of Franks v New York State &Local Retirement Sys., 47 AD3d 1115, 1116 [2008]; Matter of Woods v McCall,240 AD2d 839, 839 [1997], lv denied 90 NY2d 808 [1997]).
We have reviewed petitioner's remaining contentions and find them to be without merit.
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.