| Matter of Chilelli v DiNapoli |
| 2012 NY Slip Op 00165 [91 AD3d 1098] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Lena Chilelli,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Egan Jr., 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a school crossing guard, applied for accidental disability retirement benefits aftershe tripped over a curb and sustained an injury to her left shoulder. Following a hearing andredetermination, petitioner's application was denied upon the ground that, among other things,petitioner did not establish that her injuries were sustained as the result of an accident within themeaning of the Retirement and Social Security Law. Respondent accepted the findings andconclusions of the Hearing Officer and denied the application, prompting petitioner to commencethis CPLR article 78 proceeding to challenge that determination.
As the applicant, petitioner bore the burden of establishing that her injury was caused by "asudden and extraordinary event that [was] unrelated to the ordinary risks of [her] employment"(Matter of Bleeker v New York StateComptroller, 84 AD3d 1683, 1683-1684 [2011], lv denied 17 NY3d 709 [2011][internal quotation marks and citation omitted]; accord Matter of O'Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]),and respondent's determination in this regard will not be [*2]disturbed if it is supported by substantial evidence in the record as awhole (see Matter of Ruggiero vDiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011]; Matter of West v DiNapoli, 79 AD3d1565, 1565 [2010]). "[I]njuries that arise out of an employee's own misstep or inattentionwill not merit an accidental disability determination" (Matter of Piccinini v DiNapoli, 68 AD3d 1212, 1212 [2009][internal quotation marks and citation omitted]; accord Matter of Magliato v DiNapoli, 78 AD3d 1457, 1458[2010]), and any inconsistencies between written documents and an applicant's sworn testimonypresent a credibility issue for respondent to resolve (see Matter of Dilello v DiNapoli, 83 AD3d 1361, 1362-1363[2011], lv denied 17 NY3d 717 [2011]; Matter of Confreda v New York State Comptroller, 56 AD3d 938,940 [2008], lv denied 12 NY3d 708 [2009]).
Here, petitioner's application for retirement benefits, as well as the underlying incidentreport, indicate that her injury was caused when she tripped over a curb during the performanceof her ordinary duties, i.e., helping school children cross the street. Inasmuch as there issubstantial evidence to support respondent's determination that the incident was not an accidentwithin the meaning of the Retirement and Social Security Law, it will not bedisturbed—despite evidence in the record that arguably could support a contraryconclusion (see Matter of O'Keefe v McCall, 287 AD2d 921, 922 [2001]).
Peters, J.P., Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.