| Matter of Henry v DiNapoli |
| 2011 NY Slip Op 01925 [82 AD3d 1446] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of William Henry, Petitioner, v Thomas P.DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Malone Jr., 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 respondentComptroller which denied petitioner's application for accidental disability retirement benefits.
In April 2006 petitioner, a police officer, and his partner responded to a residential domesticviolence call. Two other officers also accompanied petitioner and his partner to the scene toprovide backup. Upon entering the residence, the male subject struck the two backup officers andshoved petitioner's partner onto a small table. As his partner held onto the subject, petitionerhandcuffed the individual. When petitioner turned away to comfort a small child who waspresent in the residence, the table upon which petitioner's partner was sprawled collapsed, pullingthe partner, the subject and petitioner to the floor.
In July 2007, petitioner applied for accidental disability retirement benefits, alleging adebilitating injury to his right shoulder as a result of the April 2006 incident. Respondent NewYork State and Local Police and Fire Retirement System denied the application, finding that theforegoing incident did not constitute an accident within the meaning of the Retirement and Social[*2]Security Law. Following a hearing, a Hearing Officer reachedthe same conclusion and denied petitioner's application. Respondent Comptroller upheld theHearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding tochallenge that determination.
We confirm. Petitioner bore the burden of establishing that his injuries were accidental, andthe Comptroller's determination in this regard, if supported by substantial evidence in the recordas a whole, will be upheld (see Matter ofSorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010]; Matter of Benedetto v DiNapoli, 73 AD3d 1380, 1381 [2010],lv denied 15 NY3d 707 [2010]). To that end, "when a petitioner sustains an injury in thecourse of performing ordinary employment duties . . . , it is not an accidental injury"(Matter of Stymiloski v DiNapoli,64 AD3d 865, 866 [2009] [internal quotation marks and citation omitted]). Stated anotherway, "[t]he precipitating event must emanate from a risk that is not an inherent element of thepetitioner's regular employment duties" (Matter of Wise v New York State Comptroller, 38 AD3d 1032,1033-1034 [2007], lv denied 9 NY3d 811 [2007] [internal quotation marks and citationomitted]).
Here, petitioner testified, and his job description reflects, that responding to domesticviolence calls and restraining unruly subjects were part of his routine employment duties. To theextent that petitioner argues that his injury stemmed not from the performance of his routineemployment duties but, rather, from an unexpected event, i.e., the table collapsing beneath hispartner, which occurred after his routine employment duties had concluded, the record fails tosupport this claim. Petitioner, his partner and one of the backup officers all testified that the tablecollapsed within seconds of petitioner placing the subject in handcuffs and, further, it occurredwhile petitioner, his partner and the subject were all still present in the confined space where thetable was located. Under these circumstances, we cannot say that the Comptroller erred indenying petitioner's application (seeMatter of Crisera v New York State Comptroller, 79 AD3d 1573 [2010]; Matter of Welsh v New York StateComptroller, 67 AD3d 1167 [2009], lv denied 14 NY3d 706 [2010]; Matter of Hughes v Hevesi, 56 AD3d934 [2008], lv denied 12 NY3d 711 [2009]; Matter of Wise v New York StateComptroller, supra).
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.