| Matter of Herlihy v DiNapoli |
| 2010 NY Slip Op 06135 [75 AD3d 892] |
| July 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brian A. Herlihy, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Sania W. Khan of counsel), forrespondent.
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 whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner began working as a police officer for the Town of Bedford, Westchester County in1995. In 2001, petitioner felt a pop in his back while lifting a speed trailer[FN*]onto a tow hitch. In 2002, petitioner injured his upper back and shoulder when he was assistingin the arrest of a burglary suspect. In 2005, petitioner injured his right shoulder when he trippedon a step in the police station attempting to answer the telephone while working desk duty. Heapplied for accidental disability retirement benefits in 2007 asserting that he was permanentlydisabled due to the injuries sustained in the three work-related incidents described above.Petitioner's application was initially denied and upon redetermination a Hearing Officerconcluded that none [*2]of the incidents constituted an accidentwithin the meaning of Retirement and Social Security Law § 363 and that petitioner'sapplication should be denied. Respondent adopted the Hearing Officer's findings, prompting thisCPLR article 78 proceeding.
We confirm. A petitioner bears the burden of establishing that his or her injuries wereaccidental (see Matter of Sweeney vHevesi, 50 AD3d 1366, 1366 [2008]), meaning that they were caused by "a sudden andextraordinary event that is unrelated to the ordinary risks of employment" (Matter ofSantorsola v McCall, 302 AD2d 727, 728 [2003]). Here, the record amply supportsrespondent's determination that petitioner suffered his injuries while performing routine tasksinherent in his employment (see Matterof Rolon v DiNapoli, 67 AD3d 1298, 1299 [2009]; Matter of Magrino v DiNapoli, 64 AD3d 868, 869 [2009]; Matter of Zuckerberg v New York StateComptroller, 46 AD3d 1057, 1058 [2007], lv denied 10 NY3d 712 [2008]; Matter of Pappalardo v Hevesi, 34AD3d 1021, 1022 [2006]).
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: A speed trailer is a deviceplaced on the side of the road that informs motorists how fast they are driving.