| Matter of Olivera v New York State & Local Employees' RetirementSys. |
| 2011 NY Slip Op 01913 [82 AD3d 1434] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Elizabeth A. Olivera, Petitioner, vNew York State and Local Employees' Retirement System,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 the Comptroller whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner was employed as a secure care treatment aide by the New York State Office ofMental Retardation and Developmental Disabilities for three years when, in September 2006, shewas assaulted by one of the consumers under her care and sustained injuries to her lower back,right leg and left foot. In January 2008, petitioner applied for accidental disability retirementbenefits on the ground that the injuries sustained during the 2006 incident permanentlyincapacitated her from performing her duties. After petitioner's application was denied byrespondent in June 2008, she timely requested a hearing and determination on her application.Following a hearing, her application was ultimately denied by the Comptroller based on a findingthat the assault did not constitute an accident within the meaning of Retirement and SocialSecurity Law § 605 and petitioner, thereafter, commenced this CPLR article 78proceeding.[*2]
We confirm. Here, as part of her job duties, petitionerwas required to "treat and care for mentally ill or mentally retarded persons who are highlyassaultive, suicidal and dangerous to themselves or others." Petitioner testified at the hearing thatrestraining consumers was a part of her job duties and she was aware that she was dealing with apopulation that could pose a threat to her. Additionally, petitioner's coworker testified that shehad seen petitioner perform interventions with this particular consumer in the past and that suchinterventions were the "norm." Because an injury resulting from the performance of ordinaryemployment duties is not an accidental injury (see Matter of Carducci v DiNapoli, 77 AD3d 1052-1053 [2010]; Matter of Lorenzo v DiNapoli, 67AD3d 1311, 1312 [2009]), we find the Comptroller's determination to be supported bysubstantial evidence (see Matter ofWelsh v New York State Comptroller, 67 AD3d 1167, 1169 [2009], lv denied14 NY3d 706 [2010]; Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000]).
Peters, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.