| Matter of O'Neill v DiNapoli |
| 2011 NY Slip Op 03002 [83 AD3d 1280] |
| April 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Robert K. O'Neill, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner served as a police officer for the City of Yonkers in Westchester County andsustained injuries as the result of two job-related incidents. In February 2003, while walkingthrough a neighborhood making sex offender notifications, he slipped on an ice patch and fell,injuring his shoulder. In March 2007, while walking down a plastic-covered cardboard ramp, heslipped and landed in an awkward position, allegedly causing the retina in his right eye to detach,leading to lost vision. Based upon these injuries, petitioner filed applications for accidental andperformance of duty disability retirement benefits; only the latter was approved. Petitionerthereafter requested a hearing and redetermination with regard to his application for accidentaldisability benefits and, ultimately, respondent denied the application. Petitioner, thereafter,commenced this CPLR article 78 proceeding.
In seeking accidental disability benefits, petitioner bears the burden of establishing that [*2]his injuries were the result of an accident, and respondent'sdetermination will not be disturbed if supported by substantial evidence (see Matter of Magliato v DiNapoli, 78AD3d 1457, 1458 [2010]; Matter ofStymiloski v DiNapoli, 64 AD3d 865, 866 [2009]). An accident in this context is "asudden and extraordinary event that is unrelated to the ordinary risks of employment" (Matter of Carducci v DiNapoli, 77AD3d 1052, 1052-1053 [2010] [internal quotation marks and citation omitted]; seeMatter of Magliato v DiNapoli, 78 AD3d at 1458). Here, with regard to the February 2003incident, petitioner testified that it was a cold day and that the sidewalk was covered with snow,including an 18-inch snow bank that petitioner stepped over just prior to his fall. Under thecircumstances, respondent's determination that slipping on ice did not constitute a sudden andextraordinary event is supported by substantial evidence (see Matter of Allesandro v DiNapoli, 68 AD3d 1592, 1594 [2009],lv denied 14 NY3d 705 [2010]; Matter of Stymiloski v DiNapoli, 64 AD3d at866).
However, we arrive at a different conclusion with regard to the March 2007 incident.Petitioner testified that he was carrying a box of binders and paperwork from the second floor tothe first floor when the ramp he was walking down suddenly shifted, without warning, causinghim to land awkwardly and jolt his neck. Further, he stated that he had made at least a dozen tripsover the ramp throughout the course of the day, without any way to avoid it, and that it had beensturdy and there was no indication that it might shift. Based upon these uncontroverted facts, wefind the record does not support respondent's determination that the injury was caused solely bypetitioner's misstep, rather than by the sudden shifting of the ramp (see Matter of Balduzzi vMcCall, 220 AD2d 796, 797 [1995]; compare Matter of Grutzner v Murray, 68 AD3d 1231, 1232[2009]; Matter of Batista v New YorkState Comptroller, 56 AD3d 927, 928 [2008], lv denied 12 NY3d 708 [2009]).
Peters, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent for further proceedings notinconsistent with this Court's decision.