| Matter of Cirrone v DiNapoli |
| 2011 NY Slip Op 00337 [80 AD3d 1069] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Richard J. Cirrone, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
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Peters, 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 Comptrollerwhich denied petitioner's application for disability retirement benefits.
While working for a municipality in 2005, petitioner was purportedly injured when he fellfrom a chair he was standing on in order to clean and turn on an air conditioner. His applicationfor disability retirement benefits was denied on the ground that he had failed to demonstrate thathis disability arose out of an accident as defined in the Retirement and Social Security Law.Petitioner requested a hearing and redetermination, following which a Hearing Officer denied hisapplication for the same reason. Respondent Comptroller adopted those findings and this CPLRarticle 78 proceeding ensued.
We confirm. Petitioner had less than 10 years of service at the time of his disabilityretirement [*2]application and, as such, "he bore the burden ofdemonstrating that he was disabled 'as the natural and proximate result of an accident not causedby his own willful negligence sustained in the performance of his duties' " (Matter of Cornacchio v DiNapoli, 68AD3d 1520, 1521 [2009], lv denied 14 NY3d 707 [2010], quoting Retirement andSocial Security Law § 605 [b] [3]). Within the realm of disability retirement benefits, anaccident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious inimpact" (Matter of Kenny vDiNapoli, 11 NY3d 873, 874 [2008] [internal quotation marks omitted]; see Matter of Sorrentino v DiNapoli,74 AD3d 1694, 1695 [2010]). Accordingly, an injury is not accidental in nature if it occursas the result of an applicant's routine employment duties and does not involve an unexpectedevent (see Matter of Kenny v DiNapoli, 11 NY3d at 874; Matter of Batista v New York StateComptroller, 56 AD3d 927, 928 [2008], lv denied 12 NY3d 708 [2009]).Petitioner testified here that his work duties included cleaning the air conditioner and turning iton. He further stated that he routinely stood on the same chair to do so and that he fell aftertripping on its seat cushion. Inasmuch as petitioner admitted that the chair was in good conditionand pointed to nothing beyond his own misstep as the cause of his fall, substantial evidencesupports the Comptroller's determination that the 2005 incident did not constitute an accident(see Matter of Batista v New York State Comptroller, 56 AD3d at 928-929; Matter ofKalis v McCall, 257 AD2d 838, 839 [1999]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.