| Matter of Held v DiNapoli |
| 2011 NY Slip Op 01923 [82 AD3d 1444] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kenneth L. Held, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Kavanagh, J. 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 which,among other things, denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits andperformance of duty disability retirement benefits alleging that a number of work-relatedincidents left him physically unable to perform his duties. His applications were disapproved inthe first instance, and he sought a hearing and redetermination. Respondent ultimately found thatpetitioner was permanently incapacitated from performing the duties of a police officer andgranted his application for performance of duty disability retirement benefits. Petitioner'sapplication for accidental disability retirement benefits was denied, however, with respondentfinding that none of the incidents contributing to his incapacity constituted an accident as thatterm is used in Retirement and Social Security Law § 363.
This CPLR article 78 proceeding ensued and, as substantial evidence supports respondent'sdetermination, we confirm. Petitioner bore the burden of demonstrating that his [*2]injuries were accidental, in "that they were caused by 'a sudden andextraordinary event that is unrelated to the ordinary risks of employment' " (Matter of Herlihy v DiNapoli, 75AD3d 892, 893 [2010], quoting Matter of Santorsola v McCall, 302 AD2d 727, 728[2003]; see Matter of Sorrentino vDiNapoli, 74 AD3d 1694, 1695 [2010]). As is relevant here, petitioner was injuredwhile subduing a combative individual who was resisting arrest, and respondent was free todetermine that the risk of injury inherent in that activity arose in the course of petitioner's routinepolice duties (see Matter of Ammann vNew York State Comptroller, 13 AD3d 858, 859 [2004], lv denied 5 NY3d 702[2005]; Matter of Clair v Regan, 89 AD2d 663, 663-664 [1982], lv denied 57NY2d 608 [1982]). Petitioner's CPLR article 78 petition only challenged respondent'sdetermination with regard to the above incident and, to the extent his remaining arguments areproperly before us, they have been considered and found to be without merit (see Matter ofEckerson v New York State & Local Retirement Sys., 270 AD2d 705 [2000], lvdenied 95 NY2d 756 [2000]; Matter of Miller v McMahon, 240 AD2d 806, 807-808[1997]).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.