| Matter of Dilello v DiNapoli |
| 2011 NY Slip Op 03328 [83 AD3d 1361] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Robert A. Dilello, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh 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 respondent which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits alleging thathe sustained a disabling injury to his left knee in June 2007 as the result of a fall that occurredwhile performing administrative duties at his precinct. That application was denied upon theground that the incident alleged did not constitute an accident within the meaning of Retirementand Social Security Law § 363. At the conclusion of the hearing and redetermination thatfollowed, the Hearing Officer reached the same conclusion. Respondent thereafter upheld thedenial of petitioner's application, prompting petitioner to commence this CPLR article 78proceeding to challenge that determination.
We confirm. Petitioner bore the burden of establishing that his injuries were accidental, andrespondent's determination on this point will be upheld if supported by substantial evidence [*2]in the record as a whole (see Matter of Herlihy v DiNapoli, 75 AD3d 892, 893 [2010]; Matter of Grutzner v Murray, 68 AD3d1231, 1232 [2009]). To that end, an incident will not constitute an accident where theunderlying injuries "result[ ] from an expected or foreseeable event arising during theperformance of routine employment duties" (Matter of Campbell v DiNapoli, 56 AD3d 940, 941 [2008] [internalquotation marks and citation omitted]; see Matter of Cirrone v DiNapoli, 80 AD3d 1069, 1070 [2011]) orwhere they arise from the injured employee's own misstep or inattention (see Matter of Magliato v DiNapoli, 78AD3d 1457, 1458 [2010]; Matter ofPiccinini v DiNapoli, 68 AD3d 1212 [2009]).
On the morning of the incident, petitioner was performing administrative duties at hisprecinct. As petitioner attempted to rise from his rolling chair to retrieve a file, the butt of hisweapon caught on the chair's armrest. When petitioner tried to dislodge himself, his feet becameentangled in the wheels on the chair, causing him to lose his balance and fall. Although petitionerattempted to portray the chair as defective, the Hearing Officer discredited such testimony, notingthat neither the contemporaneous incident report nor petitioner's application for accidentaldisability retirement benefits made any mention of the alleged defect. The evaluation of suchtestimony, together with any inconsistencies existing between it and the written documentation,presented credibility issues for the Hearing Officer and respondent to resolve (see Matter of Confreda v New York StateComptroller, 56 AD3d 938, 940 [2008], lv denied 12 NY3d 708 [2009]; Matter of Pappalardo v Hevesi, 34AD3d 1021, 1022 [2006]). Upon our review of the record, we find substantial evidence tosupport respondent's determination (seeMatter of Dalton v Kelly, 16 AD3d 200, 201 [2005], lv denied 10 NY3d 705[2008]; Matter of Gamman v Kelly,11 AD3d 389 [2004]; Matter of O'Keefe v McCall, 287 AD2d 921, 922 [2001];Matter of Cheers v State of New York, 251 AD2d 735, 736 [1998]; cf. Matter ofRussell v Board of Trustees of N.Y. City Police Pension Fund, Art. II, 288 AD2d 19, 19-20[2001], lv denied 97 NY2d 608 [2002]).
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.