| Matter of Sorrentino v DiNapoli |
| 2010 NY Slip Op 05651 [74 AD3d 1694] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Patrick Sorrentino, Petitioner, v ThomasDiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Malone Jr., 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 application for accidental disability retirement benefits.
Petitioner, a deputy police chief for the City of Newburgh Police Department, submitted anapplication for performance of duty disability retirement benefits, as well as an application foraccidental disability retirement benefits, in which he alleged that he was injured in twoincidents—an incident in March 2000 in which he fell on stairs as he was carrying twofive-gallon water jugs and an incident in January 2002 in which he injured his shoulder when abox of files he lifted broke. After his applications were initially disapproved, it wasadministratively determined that petitioner was permanently incapacitated and his application forperformance of duty disability retirement benefits was approved. He then requested a rehearingand redetermination on his application for accidental disability retirement benefit. Following ahearing, a Hearing Officer determined that neither of the incidents were accidents within themeaning of the Retirement and Social Security Law and denied the application. RespondentComptroller accepted the Hearing Officer's determination and this CPLR article 78 proceedingensued.[*2]
We confirm. It was petitioner's burden to establish thathis injuries were accidental and the Comptroller's determination in that regard will be sustainedwhere, as here, it is supported by substantial evidence in the record (see Matter of Napoli v DiNapoli, 68AD3d 1616, 1616 [2009]). Within the meaning of the Retirement and Social Security Law,an accident is "a sudden, fortuitous mischance" and the Court of Appeals has "indicated that aninjury which occurs without an unexpected event as the result of activity undertaken in theperformance of ordinary employment duties, considered in view of the particular employment inquestion, is not an accidental injury" (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008] [internalquotation marks and citation omitted]). Here, with respect to the March 2000 incident, the recordcontains substantial evidence from which the Comptroller could find that petitioner was familiarwith the condition of the stairs on which he fell and that the incident was the result of a misstepby petitioner rather than an unexpected event or defective condition (see id. at 875;compare Matter of Balduzzi v McCall, 220 AD2d 796 [1995]). Any discrepancy betweenpetitioner's hearing testimony and the written documentation regarding the condition of the stairsor the cause of petitioner's fall presented a credibility issue for the Hearing Officer to resolve (see Matter of Confreda v New York StateComptroller, 56 AD3d 938, 939 [2008], lv denied 12 NY3d 708 [2009]).
The record also contains substantial evidence from which the Comptroller could determinethat the January 2002 incident was not an accident because petitioner's injury occurred duringthe course of his employment and resulted from a risk inherent in the work that he wasvoluntarily performing (see Matter of Bourret v Regan, 97 AD2d 933, 934 [1983];Matter of Tremblay v Levitt, 65 AD2d 901, 901-902 [1978]; compare Matter of Brown v Hevesi, 19AD3d 858 [2005]). Although a different result would not necessarily be unreasonable, theComptroller is vested with exclusive authority to determine applications for accidental disabilityretirement benefits and we perceive no basis upon which to disturb the determination at issuehere (see Matter of Welsh v New YorkState Comptroller, 67 AD3d 1167, 1168-1169 [2009], lv denied 14 NY3d 706[2010]).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.