| Matter of Ruggiero v DiNapoli |
| 2011 NY Slip Op 04583 [85 AD3d 1282] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Louis J. Ruggiero, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Egan Jr., 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 sergeant, was injured in April 2007 when he slipped and fell in theparking lot at his place of employment. Petitioner's subsequent application for accidentaldisability retirement benefits was denied upon the ground that the April 2007 incident did notconstitute an accident within the meaning of Retirement and Social Security Law §363.[FN*]Following a hearing and redetermination, a Hearing Officer reached the same conclusion.Respondent thereafter upheld the Hearing Officer's decision, prompting petitioner to commencethis proceeding pursuant to CPLR article 78 to challenge that determination.[*2]
We confirm. As the applicant, petitioner bore the burdenof demonstrating his entitlement to accidental disability retirement benefits, and respondent'sdetermination on this point, if supported by substantial evidence in the record as a whole, will beupheld (see Matter of Carducci vDiNapoli, 77 AD3d 1052, 1052 [2010]; Matter of Confreda v New York State Comptroller, 56 AD3d 938,939 [2008], lv denied 12 NY3d 708 [2009]; Matter of Franks v New York State & Local Retirement Sys., 47 AD3d1115, 1116 [2008]). To that end, "an incident does not qualify as an accident justifying theaward of accidental disability retirement benefits where the injury results from an expected orforeseeable event arising during the performance of routine employment duties" (Matter of Campbell v DiNapoli, 56AD3d 940, 941 [2008] [internal quotation marks and citations omitted]; see Matter of Kenny v DiNapoli, 11NY3d 873, 874 [2008]; Matter ofO'Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12NY3d 708 [2009]).
Here, the testimony at the hearing established that as petitioner was walking to his patrolvehicle, he slipped and fell on a patch of snow-covered ice that had accumulated in the parkinglot. Although petitioner testified that he was not aware of the ice prior to his fall, he alsoacknowledged that it had snowed the night before, that he observed snow on the ground prior tohis fall and that the parking lot had iced over in the past. Under these circumstances, the icycondition presented a hazard that petitioner reasonably could have anticipated (see Matter of Kempkes v DiNapoli, 81AD3d 1071, 1072 [2011]; Matter ofTomita v DiNapoli, 66 AD3d 1071, 1072 [2009]; see also Matter of Hardy v DiNapoli, 82 AD3d 1490, 1491[2011])—even if he did not actually see it prior to his fall (see Matter of O'Brien v NewYork State Comptroller, 56 AD3d at 938; Matter of Melendez v New York State Comptroller, 54 AD3d1128, 1129-1130 [2008], lv denied 12 NY3d 706 [2009]; Matter of Franks vNew York State & Local Retirement Sys., 47 AD3d at 1116).
Peters, J.P., Spain, Rose and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner also filed anapplication for performance of duty disability retirement benefits, which was approved in July2009.