| Matter of Gregg v DiNapoli |
| 2011 NY Slip Op 06007 [86 AD3d 850] |
| July 21, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ronald Gregg, Petitioner, v Thomas P.DiNapoli, as New York State Comptroller, et al., Respondents. |
—[*1]
Eric T. Schneiderman, Attorney General, Albany (William A. Storrs of counsel), forrespondents.
Rose, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, an Administrative Law Judge for a state agency, sustained injuries when heattempted to retrieve a case file from a box of files he had stacked in his office. RespondentComptroller denied petitioner's subsequent application for accidental disability retirementbenefits on the ground that petitioner's disability was not the result of an accident within themeaning of Retirement and Social Security Law § 63. Petitioner then commenced thisCPLR article 78 proceeding seeking to annul that determination.
Petitioner bore the burden of proving that his injury was accidental, and the Comptroller'sdetermination will be upheld if it is supported by substantial evidence (see Matter of Walsh v New York State &Local Retirement Sys., 82 AD3d 1341, 1341 [2011]; Matter of Sinclair v New York State & Local Retirement Sys., 42 AD3d595, 596 [2007]). For purposes of Retirement and Social Security Law § 63, an injurywill be considered accidental if it is the result of a " 'sudden, fortuitous mischance [which is]unexpected [and] out of the ordinary' " (Matter of [*2]Kempkes v DiNapoli, 81AD3d 1071, 1072 [2011], quoting Matter of Hulse v DiNapoli, 70 AD3d 1235, 1236 [2010]). "[A]ninjury which occurs without an unexpected event as the result of activity undertaken in theperformance of ordinary employment duties, considered in view of the particular employment inquestion, is not an accidental injury" (Matter of Lichtenstein v Board of Trustees of PolicePension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; see Matter of Conkling v Hevesi, 42AD3d 630, 631 [2007]).
Here, petitioner testified that he was doing research in preparation for a hearing when hedetermined that he needed a file located in a stack of boxes that he had placed in his office. Notable to find a maintenance worker to help him lift or move the boxes, petitioner attempted to getthe file himself by pulling on the second box from the top of a stack of seven boxes without firstremoving the box on top of it. The top box started to fall and, as petitioner attempted to catch it,he wrenched his back, lost his balance and stumbled backwards, hitting his desk and injuringhimself.
Despite petitioner's claim that it was not his job to move file boxes, substantial evidencesupports the finding that the research he was conducting was part of his ordinary employmentduties and that it was not normal for maintenance workers to retrieve files for the judges (seee.g. Matter of Woodward v McCall, 300 AD2d 978, 979 [2002]; compare Matter of Brown v Hevesi, 19AD3d 858, 859 [2005]). Substantial evidence also supports the finding that petitioner'sinjury was not the result of an unexpected event, as he arranged his boxes in stacks and decidedto pull the needed box out without first removing the top box (see Matter of Walsh v NewYork State & Local Retirement Sys., 82 AD3d at 1342; Matter of Santorsola vMcCall, 302 AD2d 727, 728 [2003]; Matter of Cadiz v McCall, 236 AD2d 766, 766[1997]).
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.