| Matter of Carpiniello v DiNapoli |
| 2011 NY Slip Op 06967 [88 AD3d 1045] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Stephen Carpiniello, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Mercure, J.P. 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, sustained injuries while involved in an effort to subdue anemotionally disturbed individual for transport to a medical facility for evaluation and treatment.Petitioner's subsequent application for accidental disability retirement benefits was initiallydenied and he requested a hearing and redetermination. The Hearing Officer denied petitioner'sapplication on the ground that the incident did not constitute an accident within the meaning ofthe Retirement and Social Security Law. Respondent accepted the Hearing Officer's findings andconclusions and denied petitioner's application. This CPLR article 78 proceeding ensued.
"For purposes of accidental disability retirement benefits, the underlying accident must be 'asudden, fortuitous, out of the ordinary and unexpected event that does not result from an activityundertaken in the performance of regular or routine employment duties' " (Matter of Welsh v New York StateComptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d 706 [*2][2010], quoting Matter of Dzwielewski v McCall, 277AD2d 622, 622 [2000]). Here, petitioner acknowledged that dealing with emotionally disturbedindividuals and subduing them through physical contact was an ordinary part of his job dutiesand that he had been required to do so on previous occasions. With regard to respondent'sdecision not to credit certain other testimony by petitioner that differed from the written incidentreports, we note that resolution of all credibility issues is properly left to respondent (see Matter of Hardy v DiNapoli, 82AD3d 1490, 1491 [2011]; Matter ofWalters v Hevesi, 23 AD3d 982, 983 [2005]). Inasmuch as respondent's determinationthat the incident does not constitute an accident is supported by substantial evidence, it must besustained (see Matter of Welsh v New York State Comptroller, 67 AD3d at 1168;Matter of Walters v Hevesi, 23 AD3d at 983). Based upon the record before us, we donot find that a different result is required because another officer who was injured during thesame incident was apparently awarded accidental disability retirement benefits.
Peters, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.