| Matter of Carducci v DiNapoli |
| 2010 NY Slip Op 07299 [77 AD3d 1052] |
| October 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paula P. Carducci, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Mercure, J.P. 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.
In 2005, petitioner applied for accidental disability retirement benefits based upon injuriesthat she allegedly suffered in 1999 and 2000 while working for the City of Buffalo PoliceDepartment. The application was originally denied and petitioner requested a redetermination,limiting her application solely to the question of whether the 2000 incident constituted anaccident. Following a hearing, the Hearing Officer found that petitioner had established that the2000 incident was an accident within the meaning of the Retirement and Social Security Law.Respondent thereafter overruled that determination and denied petitioner's application. ThisCPLR article 78 proceeding ensued.
We confirm. Initially, contrary to petitioner's contention, respondent is not bound by a [*2]hearing officer's determination (see Retirement and SocialSecurity Law § 74 [b]; Matter ofWilson v DiNapoli, 52 AD3d 931, 933 [2008]). Petitioner bore the burden here ofproving her injury was accidental and respondent's determination will be upheld if supported bysubstantial evidence (see Matter ofSweeney v Hevesi, 50 AD3d 1366, 1366 [2008]). "An accident within the meaning ofthe Retirement and Social Security Law is a sudden and extraordinary event that is unrelated tothe ordinary risks of employment" (Matter of Santorsola v McCall, 302 AD2d 727, 728[2003] [citation omitted]; accord Matterof Napoli v DiNapoli, 68 AD3d 1616, 1616 [2009]). Further, "an injury which occurswithout an unexpected event as the result of activity undertaken in the performance of ordinaryemployment duties . . . is not an accidental injury" (Matter of Lichtenstein vBoard of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art II, 57 NY2d1010, 1012 [1982]; accord Matter ofLorenzo v DiNapoli, 67 AD3d 1311, 1312 [2009]).
Here, petitioner testified that her job duties included, among other things, computer work andadministrative functions such as processing payroll, filling out sign-in sheets and completingpaperwork. On the day of the 2000 incident, petitioner and another police officer wererearranging the desks and setting up new computers in the office they shared with two otherofficers, when petitioner slipped on a piece of paper that was on the floor and fell. In our view,substantial evidence supports respondent's determination that petitioner was engaged in ordinaryemployment duties, and that the fact that a piece of paper was on the floor in the office was notan unexpected event, but was, instead, a hazard that she could reasonably have anticipated (see Matter of O'Brien v New York StateComptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708 [2009]; Matter of Franks v New York State &Local Retirement Sys., 47 AD3d 1115, 1116 [2008]; Matter of Avery v McCall,308 AD2d 677, 678 [2003]). Accordingly, the determination that petitioner did not suffer anaccidental injury within the meaning of the Retirement and Social Security Law will not bedisturbed.
Petitioner's remaining claims, including that respondent violated State AdministrativeProcedure Act § 307 (1) and (2), have been considered and found to be unavailing.
Malone Jr., McCarthy, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.