| Matter of Bleeker v New York State Comptroller |
| 2011 NY Slip Op 04353 [84 AD3d 1683] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Stanley W. Bleeker, Petitioner, v NewYork State Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
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 by respondent Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner was a police lieutenant employed by the Port Authority of New York and NewJersey. In February 2005, petitioner responded to a report of a motor vehicle accident and wasinjured when he slipped on a combination of ice and transmission fluid. His subsequentapplication for accidental disability retirement benefits was denied on the ground that theincident that caused his injury was not an accident within the meaning of Retirement and SocialSecurity Law § 363. Following a request for a redetermination, a hearing was held and theHearing Officer denied the application on the same ground. Respondent Comptrollersubsequently adopted that decision, prompting this CPLR article 78 proceeding.
We confirm. Petitioner bore the burden of proving entitlement to accidental disabilityretirement benefits and the Comptroller's determination will be upheld if supported by substantialevidence (see Matter of Napoli vDiNapoli, 68 AD3d 1616, 1616 [2009]). "An accident within the meaning of theRetirement and Social Security Law is a sudden and extraordinary event that [*2]is unrelated to the ordinary risks of employment" (Matter ofSantorsola v McCall, 302 AD2d 727, 728 [2003] [citation omitted]; accord Matter ofNapoli v DiNapoli, 68 AD3d at 1616). Further, where "the hazard presented was one that[the] petitioner could have reasonably anticipated, even if he [or she] did not actually see it untilafter [sustaining his or her injury]," it is not an accidental injury (Matter of Avery vMcCall, 308 AD2d 677, 678 [2003]; see Matter of Tomita v DiNapoli, 66 AD3d 1071, 1072 [2009]).
Here, petitioner testified that responding to vehicle accidents was one of his assigned jobduties. According to petitioner, as he approached the accident scene, he noted that there wasdebris on the road and smoke or steam was emanating from the vehicle. As he was attempting toopen the vehicle's front passenger door, petitioner slipped on ice and transmission fluid that wason top of the ice, having apparently leaked out of the vehicle's engine. Petitioner testified that,although he was aware that the road was icy, he did not see the transmission fluid on the road ashe approached the vehicle. While petitioner may not have seen the transmission fluid, he didtestify that it is not unusual for fluids to leak from a vehicle that had been involved in anaccident. In our view, substantial evidence supports the Comptroller's determination thatpetitioner was engaged in one of his ordinary job duties and that the hazard presented,transmission fluid leaking onto the ice-covered road, could have been reasonably anticipated,even if petitioner did not actually see the fluid until after he slipped (see Matter of Carducci v DiNapoli, 77AD3d 1052, 1053 [2010]; Matter ofO'Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12NY3d 708 [2009]; Matter of Avery v McCall, 308 AD2d at 678). Accordingly, theComptroller's determination that petitioner did not suffer an accident within the meaning of theRetirement and Social Security Law will not be disturbed.
Spain, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.