| Matter of Tierney v New York State Comptroller |
| 2011 NY Slip Op 08879 [90 AD3d 1215] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Brian P. Tierney, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 lieutenant with the Port Authority of New York and New Jersey,sustained a knee injury on May 1, 2006 when he slipped on discarded food while stepping out ofan office building where he routinely worked and down a step to a parking lot. Petitioner testifiedthat he did not observe food at such location when he entered earlier in the day. He stated that hecould not see it while exiting because it was located down a step and within about one inch of thedoor. Following the denial of his application for accidental disability retirement benefits,petitioner sought a hearing and redetermination. The Hearing Officer thereafter deniedpetitioner's application, finding that the May 2006 incident did not constitute an accident withinthe meaning of Retirement and Social Security Law § 363. Relying on a report prepared bypetitioner indicating that the discarded food was near a waste can, the Hearing Officerdetermined that petitioner "had to see foreign objects on these steps on prior occasions," thus"foreign objects on the steps was foreseeable." Respondent Comptroller adopted the HearingOfficer's decision and denied the application, prompting the commencement of this CPLR article[*2]78 proceeding challenging that determination.
"As the applicant, petitioner bore the burden of demonstrating his entitlement to accidentaldisability retirement benefits, and the Comptroller's determination, if supported by substantialevidence in the record as a whole, will be upheld" (Matter of Walsh v New York State & Local Retirement Sys., 82 AD3d1341, 1341 [2011] [citations omitted]). "An accident in this context is a sudden andextraordinary event that is unrelated to the ordinary risks of employment" (Matter of O'Neill v DiNapoli, 83 AD3d1280, 1280-1281 [2011] [internal quotation marks and citation omitted]). Although benefitsmay thus be denied "where 'the hazard presented was one that the petitioner could havereasonably anticipated, even if he or she did not actually see it until after his or her fall' "(Matter of Walsh v New York State & Local Retirement Sys., 82 AD3d at 1342, quotingMatter of Avery v McCall, 308 AD2d 677, 678 [2003]), a denial upon such ground mustbe supported by the record and not rest merely upon speculation (see Matter of Cantone vMcCall, 289 AD2d 863, 864 [2001]; cf. Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011],lv denied 17 NY3d 711 [2011] [although the petitioner was not aware of ice prior to fall,he observed snow on ground and acknowledged parking lot iced over in past]; Matter of Bleeker v New York StateComptroller, 84 AD3d 1683, 1684 [2011], lv denied 17 NY3d 709 [2011][although the petitioner did not see transmission fluid upon which he slipped, he admitted that itwas not unusual to have fluid leaks following a vehicle accident]).
Here, the Hearing Officer found that the presence of a waste can in the vicinity created asituation where petitioner had to have actually seen debris on prior occasions and, thus, theaccident could have reasonably been anticipated. The only reference to the waste can is inpetitioner's report. He was not asked about it during his testimony, there was no indication as tohow long it had been at the location, and there was no proof whether debris had been observed onearlier occasions in the vicinity. The conclusion that petitioner actually saw debris on prior dates,based solely on the presence for an unknown amount of time of a waste can in the vicinity, isspeculative and unsupported by substantial evidence in this record.
Rose, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted, and matter remitted to respondent Comptroller forfurther proceedings not inconsistent with this Court's decision.