| Matter of Stone v New York State Comptroller |
| 2011 NY Slip Op 09235 [90 AD3d 1377] |
| December 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Karen A. Stone, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Rose, J.P. 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, was walking backwards up a set of stairs carrying a trundle to aheart attack victim when the ambulance driver assisting her at the other end of the trundle pushedit forward, causing petitioner to lose her balance and fall backwards against an open screen doorthat gave way, injuring her shoulder. Petitioner's subsequent application for accidental disabilityretirement benefits was denied by respondent Comptroller on the ground that the incident wasnot an accident within the meaning of Retirement and Social Security Law § 363.Petitioner thereafter commenced this CPLR article 78 proceeding challenging the Comptroller'sdetermination.
We confirm. Petitioner was engaged in the performance of her regular duties at the time ofthe incident, and the precipitating event, namely, the hasty or uncoordinated movement of hercoworker in carrying the trundle up the stairs, was a risk of the work performed and, under thesecircumstances, cannot be characterized "as a sudden, fortuitous mischance, unexpected [and] out[*2]of the ordinary" (Matter of Felix v New York State Comptroller, 28 AD3d 993, 994[2006] [internal quotation marks and citations omitted]; see Matter of Stimpson v Hevesi, 38 AD3d 979, 980 [2007]; Matter of Kosilla v Hevesi, 25 AD3d870, 872 [2006]). The fact that petitioner did not anticipate her coworker's movement doesnot transform the incident into an accident within the meaning of the Retirement and SocialSecurity Law (see Matter of Felix v New York State Comptroller, 28 AD3d at 994).Rather, in our view, the injury occurred " 'without an unexpected event as the result of activityundertaken in the performance of ordinary employment duties, considered in view of theparticular employment in question' " (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008], quotingMatter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City ofN.Y., Art. II, 57 NY2d 1010, 1012 [1982]).
Petitioner also argues that, even if the uncoordinated movement of the coworker is aninherent risk of employment, the screen door giving way is an unexpected event akin to the stepin the pothole that was considered accidental in Matter of Pratt v Regan (68 NY2d 746,747 [1986]). We are not persuaded. Petitioner, who bore the burden of proving that the injurywas accidental (see Matter of Kempkesv DiNapoli, 81 AD3d 1071, 1072 [2011]), did not present any evidence at the hearingthat the screen door was hazardous, defective or a cause of injury unrelated to the ordinary risksof the job of carrying a load backwards up a set of stairs (compare Matter of Leuenberger vMcCall, 235 AD2d 906, 907 [1997]). Rather, petitioner testified that, as she fell backwards,she slammed into the door, which had been propped open by its spring mechanism, and it gaveway, causing her to then hit the house. That a door that has been propped open by a springmechanism will give way when slammed into cannot be considered unexpected, nothing aboutthe door being propped open so as to allow entry into the house can be considered hazardous andpetitioner offered no evidence that the door was defective. Accordingly, the evidence presenteddoes not compel a finding, as a matter of law, that the door was a hazardous or defectivecondition that caused the injury such as in Pratt or its progeny (see Matter of Balduzziv McCall, 220 AD2d 796 [1995] [defective stair tread]; Matter of Sullivan v Regan,133 AD2d 993 [1987] [icy curb]; Matter of Boudreau v Regan, 129 AD2d 846 [1987][bottle lying on the ground]). As substantial evidence supports the Comptroller's determinationthat the incident was not an accident, but was instead a risk inherent in the regular duties ofpetitioner's employment, it will not be disturbed (see Matter of Kempkes v DiNapoli, 81AD3d at 1072; Matter of Stimpson v Hevesi, 38 AD3d at 980; Matter of Felix v NewYork State Comptroller, 28 AD3d at 994).
Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.