| Matter of Magliato v DiNapoli |
| 2010 NY Slip Op 08671 [78 AD3d 1457] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Philip Magliato, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Mercure, J.P. 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, submitted an application for accidental disability retirement benefitsbased upon injuries he allegedly suffered in 2004 and 2005. The application was initially denied andpetitioner requested a rehearing and redetermination, limiting his application to the 2004 incident.Thereafter, a Hearing Officer determined that the incident did not constitute an accident within themeaning of the Retirement and Social Security Law, and denied the application. Respondent acceptedthis determination, and this CPLR article 78 proceeding ensued.
We confirm. "The petitioner bears the burden of proving that an injury was accidental and[respondent'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]). Moreover, "[a]n accident within the meaning of theRetirement and Social Security Law is a sudden and extraordinary event that is unrelated to theordinary risks of employment" (Matter of Santorsola v McCall, 302 AD2d 727, 728 [2003]).Accordingly, "injuries that arise out of an employee's own misstep or inattention will not merit anaccidental disability determination" (Matter ofMagrino v DiNapoli, 64 AD3d 868, 869 [2009]). Here, petitioner testified that he wasconducting a search inside a parked truck and failed to notice that the floorboard was warped, causinghim to trip on the tailgate and fall to the pavement below. Given this evidence that petitioner's injury wasthe result of his own inattention and misstep, and not an extraordinary event unrelated to the risks of hisemployment as a police officer, respondent's determination is supported by substantial evidence andwill not be disturbed (see Matter of McCabev Hevesi, 38 AD3d 1035, 1036 [2007]; Matter of Lassen v Hevesi, 9 AD3d 780, 781 [2004]).
Peters, Rose, Malone Jr. and Egan Jr., JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.