| Matter of Napoli v DiNapoli |
| 2009 NY Slip Op 10028 [68 AD3d 1616] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Timothy P. Napoli, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Cardona, P.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 retired from his position as a detective specializing in crime scene investigationfor the City of Newburgh Police Department in November 2007. Earlier that year, petitionerapplied for accidental disability retirement benefits alleging that he was permanently disabled asthe result of an incident that occurred in 1997 when he fell from an eight-foot-high ledge whileprocessing latent fingerprints outside a second-story window of a home that had just beenburglarized. After his application was disapproved, he requested a hearing and redetermination.Following the hearing, a Hearing Officer concluded that the incident did not constitute anaccident within the meaning of the Retirement and Social Security Law and denied petitioner'sapplication. Respondent accepted the Hearing Officer's findings of fact and conclusions of law,prompting this CPLR article 78 proceeding.
We confirm. A "[p]etitioner bears the burden of proving that his [or her] injury was [*2]accidental and [respondent's] determination in that regard will beupheld if supported by substantial evidence" (Matter of O'Brien v New York StateComptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708 [2009]). Moreover,"[a]n accident within the meaning of the Retirement and Social Security Law is a sudden andextraordinary event that is unrelated to the ordinary risks of employment" (Matter ofSantorsola v McCall, 302 AD2d 727, 728 [2003]), and "injuries that arise out of anemployee's own misstep or inattention will not merit an accidental disability determination"(Matter of Magrino v DiNapoli, 64 AD3d 868, 869 [2009]).
Here, petitioner testified that his job duties included investigating, searching for,documenting, protecting and evaluating evidence. To that extent, in addition to dusting thewindow for fingerprints, petitioner was on the ledge looking for any evidence that the burglarmay have left behind, such as tools, cigarettes, gum, footprints, hair or other DNA evidence.Petitioner described the ledge—which he had been on for approximately 10 minutes priorto his fall—as three feet wide, easily accessible from the back of the house and covered ina tar-like, rubbery substance. Despite realizing after he fell that there was moisture on the surfaceof the ledge where he slipped, petitioner also testified that the incident occurred on a warm,sunny day and the ledge appeared to be dry as he was moving across it. Accordingly, inasmuchas the foregoing suggests the inference that petitioner's injuries were the result of his ownmisstep or inattention while he was engaged in the performance of his ordinary employmentduties, respondent's decision is supported by substantial evidence and we decline to disturb it(see id.).
Rose, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.