| Matter of Neidecker v DiNapoli |
| 2011 NY Slip Op 02105 [82 AD3d 1483] |
| March 24, 2011 |
| Appellate Division, Third Department |
| In the Matter of Donna Neidecker, Petitioner, v Thomas P.DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, submitted an application for accidental disability retirementbenefits in which she alleged that she was permanently disabled due to injuries sustained inwork-related incidents in 2002, 2006 and 2007. Her application was disapproved and sherequested a hearing and redetermination, following which a Hearing Officer determined thatnone of the incidents constituted an accident as defined in Retirement and Social Security Law§ 363. Respondent Comptroller adopted the Hearing Officer's findings, and this CPLRarticle 78 proceeding ensued.
As substantial evidence supports the Comptroller's determination, we confirm. For purposes"of the Retirement and Social Security Law, an accident is 'a sudden, fortuitous mischance' andthe Court of Appeals has 'indicated that an injury which occurs without an [*2]unexpected event as the result of activity undertaken in theperformance of ordinary employment duties, considered in view of the particular employment inquestion, is not an accidental injury' " (Matter of Sorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010],quoting Matter of Kenny vDiNapoli, 11 NY3d 873, 874 [2008]; see Matter of Hulse v DiNapoli, 70 AD3d 1235, 1236 [2010]).Petitioner's 2002 injury arose when she became ensnarled by vegetation while chasing twosuspects and fell. Her duties included the pursuit of suspects, however, and stumbling onobstacles while doing so was an inherent risk of her "employment and not the result ofunexpected events" (Matter of Melendezv New York State Comptroller, 54 AD3d 1128, 1129 [2008], lv denied 12NY3d 706 [2009]).
Petitioner's 2006 injury arose from a fall occurring when she stepped into a small depressionin a baseball field while attempting to reach an injured boy and administer first aid. As with the2002 injury, that risk was encompassed by her normal employment duties, and the Comptrollercould properly conclude that it did not constitute an accident, even if petitioner was unaware ofthe depression's existence (see Matter ofCoon v New York State Comptroller, 30 AD3d 884, 885 [2006], lv denied 7NY3d 717 [2006]; Matter of Wilson v Regan, 98 AD2d 929 [1983]).
The final incident relied upon by petitioner occurred in 2007, when she slipped and fell on anicy sidewalk while attempting to reach her patrol car. The Comptroller appropriately determinedthat she should have anticipated the icy surface given her awareness of a recent ice storm andthat, as a result, her fall arose from her own misstep and not an unexpected event (see Matterof Kenny v DiNapoli, 11 NY3d at 874-875; Matter of Kazmierczak v McCall, 252AD2d 728, 729 [1998], lv denied 92 NY2d 813 [1998]).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.