| Matter of Sweeney v New York State Comptroller |
| 2011 NY Slip Op 06066 [86 AD3d 893] |
| July 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of John J. Sweeney, Petitioner, v New YorkState Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth 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 of respondent Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, injured his ankle when he slipped and fell on an icy patch whileresponding to a burglar alarm in January 2007. He submitted an application for accidentaldisability retirement benefits, which was denied. After a hearing, the Hearing Officer denied theapplication finding that the incident did not constitute an accident. Respondent Comptrollerupheld the denial and this CPLR article 78 proceeding ensued.
Petitioner bears the burden of proving that his injury was an accident, and the Comptroller'sdetermination will be upheld if supported by substantial evidence (see Matter of Kempkes v DiNapoli, 81AD3d 1071, 1072 [2011]; Matter ofConfreda v New York State Comptroller, 56 AD3d 938, 939 [2008], lv denied12 NY3d 708 [2009]). "[A]n injury which occurs without an unexpected event as the result ofactivity undertaken in the performance of ordinary employment duties, considered in view of theparticular employment in question, is not [*2]an accidentalinjury" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. ofCity of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; accord Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008]).When carrying out some police duties, an officer on foot may encounter, as part of the workbeing performed, a vast array of conditions, many of which are not easily traversed and can causea fall. Encountering such conditions while actively engaged in police duties often is not anunexpected event, and the Comptroller may find a fall caused thereby to be an inherent risk of thejob (see Matter of Murray v New YorkState Comptroller, 84 AD3d 1681, 1682 [2011] [falling as chasing suspect on dimly litstreet]; Matter of Neidecker vDiNapoli, 82 AD3d 1483, 1484 [2011] [tripping on vegetation while chasing aftersuspect and also stepping in small depression in field when going to give first aid at baseballfield]; Matter of Quigley v Hevesi,48 AD3d 1023, 1024 [2008] [stepping on uneven or cracked pavement during traffic stop];Matter of McCabe v Hevesi, 38AD3d 1035, 1035-1036 [2007] [stumbling on defective landing/stairs when at residenceinvestigating possible intruder]; see alsoMatter of Coon v New York State Comptroller, 30 AD3d 884, 885 [2006], lvdenied 7 NY3d 717 [2006]; Matterof Lucian v McCall, 7 AD3d 905, 906 [2004]; Matter of Penkalski v McCall,292 AD2d 735, 736 [2002]).
Here, petitioner responded to the scene of a possible burglary in progress at a residence. Hisattention was focused on a potential suspect in the house when, as he moved across outside steps,he reportedly slipped on a patch of ice and fell. Under such circumstances, substantial evidencesupports the Comptroller's determination that petitioner did not adequately establish that his fallwas an accident within the meaning of Retirement and Social Security Law § 363.
Peters, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.