| Matter of Benedetto v DiNapoli |
| 2010 NY Slip Op 04322 [73 AD3d 1380] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Richard Benedetto, Petitioner, v ThomasP. DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1]
Lahtinen, 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 correction officer, injured his back after falling on stairs in the correctionalfacility in January 2004. He has not returned to work since the incident and, in 2005, petitionerapplied for accidental disability retirement benefits. Following the initial disapproval of hisapplication, petitioner requested a redetermination and a hearing was held. The Hearing Officerconcluded that the incident did not constitute an accident within the meaning of the Retirementand Social Security Law and denied petitioner's application. After respondent Comptrolleradopted the Hearing Officer's findings, petitioner commenced this CPLR article 78 proceedingchallenging the determination.
We confirm. "The petitioner bears the burden of proving that an injury was accidental andthe Comptroller's determination in this regard will be upheld if supported by substantial [*2]evidence" (Matter of Franks v New York State & Local Retirement Sys., 47 AD3d1115, 1116 [2008] [citations omitted]). Here, a report prepared immediately following theincident indicates that petitioner lost his footing and slipped while walking down stairs leadingto the facility's basement. On his application for accidental disability retirement benefits,petitioner stated that the incident occurred as he was escorting an inmate into the basement andthat the stairs were covered with ice. At the hearing, petitioner testified that there was "a sheet ofice on the step" where he fell.
While we agree with petitioner's assertion that his subsequent statements regarding theexistence of ice on the stairs were not necessarily inconsistent with the initial incident report(see generally Matter of Lawrence v McCall, 305 AD2d 960, 962 [2003]), the factremains that the Comptroller is vested with the authority to assess witness credibility and it waswithin his discretion to find that petitioner's latter accounts of the events were not credible(see Matter of Forlano v McCall, 304 AD2d 970, 971 [2003]; Matter of Mruczek vMcCall, 299 AD2d 638, 639 [2002]). Notably, petitioner testified that theinmate—whom petitioner could not identify and did not call as a witness—had nodifficulty traveling either down or up the stairs, that they were located inside of the prison andthat he did not know how the ice allegedly formed on them. Accordingly, as petitioner's jobduties included supervising the movement of inmates, and on the date of the incident specificallyentailed escorting the inmate into the basement, we conclude that substantial evidence supportsthe Comptroller's determination that petitioner's injury was the result of a misstep occurring inthe ordinary course of his employment as opposed to a sudden and extraordinary event unrelatedto that employment (see Matter ofNapoli v DiNapoli, 68 AD3d 1616, 1616-1617 [2009]; Matter of Hughes v Hevesi, 56 AD3d934, 935-936 [2008], lv denied 12 NY3d 711 [2009]; Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.