| Matter of Randolph v DiNapoli |
| 2011 NY Slip Op 04586 [85 AD3d 1288] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of George Randolph, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer for the City of Mount Vernon in Westchester County, was injuredon February 5, 2004 when he slipped and fell on the steps outside of police headquarters as heexited the building shortly after commencement of his shift. Following the denial of petitioner'sinitial application for accidental disability retirement benefits, he sought a hearing andredetermination. The Hearing Officer also denied the application, finding that the incident did notconstitute an accident within the meaning of the Retirement and Social Security Law. Uponreview, respondent upheld the Hearing Officer's determination and petitioner thereaftercommenced this CPLR article 78 proceeding.
An injury is considered accidental under the Retirement and Social Security Law if it arisesout of a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"(Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of [*2]City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982] [internalquotation marks and citation omitted]). An injury that occurs without an unexpected event in thecourse of performing the ordinary duties of the particular employment is not an accidental injury(see Matter of Kempkes v DiNapoli,81 AD3d 1071, 1072 [2011]; Matter of Kenny v DiNapoli, 50 AD3d 1445, 1446 [2008],affd 11 NY3d 873 [2008]; Matter of Avery v McCall, 308 AD2d 677, 678[2003]).
Here, petitioner testified that he had utilized this staircase at least twice a day during the fiveyears prior to his fall. Although petitioner claimed that he did not observe the icy condition of thesteps until after his fall, he testified that it was a very cold morning and admitted that the marblesteps looked wet to him. Under these circumstances, we find that petitioner could havereasonably anticipated the hazardous condition of the steps, even if he did not actually notice ituntil after his fall. Accordingly, respondent's determination is supported by substantial evidenceand must be upheld (see Matter of Kempkes v DiNapoli, 81 AD3d at 1072; Matter ofKenny v DiNapoli, 50 AD3d at 1446; Matter of Avery v McCall, 308 AD2d at 678).
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.