| Matter of West v DiNapoli |
| 2010 NY Slip Op 09610 [79 AD3d 1565] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Diane West, 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.
Kavanagh, 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits arising out of injuriesthat she sustained while responding to a burglar alarm in 2006. Following the initial disapproval of herapplication, petitioner requested a redetermination and a hearing was held. Citing discrepanciesbetween reports in evidence and petitioner's testimony, the Hearing Officer concluded that petitionerdid not prove that her injuries were the result of an accident within the meaning of the Retirement andSocial Security Law and denied her application. After respondent accepted the Hearing Officer'sfindings of fact and conclusions of law, petitioner commenced this CPLR proceeding challenging thedetermination.
We confirm. Petitioner bore the burden of proving that her injuries were caused by "a sudden andextraordinary event that is unrelated to the ordinary risks of [her] employment" (Matter ofSantorsola v McCall, 302 AD2d 727, 728 [2003]; see Matter of Benedetto v DiNapoli, 73 AD3d 1380, 1381 [2010],lv denied 15 NY3d 707 [2010]), and respondent's determination in this regard will be upheld ifit is supported by substantial evidence (seeMatter of Sorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010]). Moreover, respondent isempowered to decide issues of credibility and evaluate any apparent inconsistency between relevantwritten documents and an applicant's sworn testimony (see Matter of Hamilton v Hevesi, 28 AD3d 965, 966 [2006]; Matterof Callanan v McCall, 301 AD2d 780, 781 [2003]).
Here, petitioner testified that she injured both of her knees after falling on hard dirt and gravel whenher boot adhered to a sticky substance while she was descending stairs at the scene of a possibleburglary. In contrast, a report completed on the day of the incident states that petitioner injured her leftknee on a concrete pad when she tripped on stairs—there is no mention of a sticky substance. Inher application for benefits, meanwhile, petitioner wrote that her injuries were the result of a "fall onslippery plastic deck." An explanation attached to the application indicates that petitioner "sustainedinjuries in a fall down a flight of stairs on a plastic deck when her foot got stuck on a step falling forwardonto her knees." With respect to these varying accounts, we defer to respondent's credibilitydeterminations (see Matter of McCabe vHevesi, 38 AD3d 1035, 1036 [2007]).
Petitioner also testified that she was in no rush when the incident occurred shortly after noon on awell-lit day. Given this testimony, considered in conjunction with the fact that petitioner's responsibilitiesincluded responding to—and taking appropriate action at—crime scenes, the recordcontains substantial evidence upon which respondent could conclude that petitioner's injuries stemmedfrom her own misstep or inattention while she was engaged in the performance of her ordinaryemployment duties (see Matter of Napoli vDiNapoli, 68 AD3d 1616, 1616-1617 [2009]; Matter of Pappalardo v Hevesi, 34 AD3d 1021, 1021-1022 [2006]).Accordingly, we decline to disturb respondent's decision.
Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.