| Matter of Murphy v New York State Comptroller |
| 2012 NY Slip Op 00700 [92 AD3d 1022] |
| February 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Vincent J. Murphy, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Spain, 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 employed by the Port Authority of New York and New Jersey,was assigned to John F. Kennedy International Airport where he also served as an emergencyrescue worker. As part of his work duties, petitioner was required to perform "functionals,"which are weekly safety tests to assure that all systems on the emergency fire rescue trucks wereoperating properly. In January 1999, petitioner drove a rescue truck onto one of the taxiways toperform a functional. As he was alighting from the cab and placing his left foot on the ground,petitioner slipped on black ice and fell, twisting his left leg and ankle and hitting his head andshoulders on the pavement. In May 2007, petitioner submitted an application for accidentaldisability retirement benefits pursuant to Retirement and Social Security Law § 363 and aHearing Officer determined that he was eligible for benefits. However, respondent Comptrollerreversed and denied benefits, prompting petitioner to commence this CPLR article 78proceeding.[*2]
"For purposes of accidental disability retirement benefits,the underlying incident must be 'a sudden, fortuitous, out of the ordinary and unexpected eventthat does not result from an activity undertaken in the performance of regular or routineemployment duties' " (Matter of Welsh vNew York State Comptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d706 [2010], quoting Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000]; accord Matter of Carpiniello vDiNapoli, 88 AD3d 1045, 1046 [2011]). A petitioner seeking benefits bears the burdenof proving entitlement, and a determination by the Comptroller will be upheld when supported bysubstantial evidence (see Matter ofSweeney v New York State Comptroller, 86 AD3d 893, 893 [2011]; Matter of Gregg v DiNapoli, 86 AD3d850, 850 [2011]).
Here, petitioner established through testimony and documentary evidence that the day of theaccident was cold and clear with no precipitation. The record establishes that the taxiway was dryas petitioner and his partner drove to the spot where they would be performing the functional,and petitioner saw no ice as he was exiting from the truck's cab. Petitioner further testified that hehad never experienced icy conditions on the taxiway unless it had snowed.
In contrast, the Comptroller rested his determination in part on the assumption by petitioner,as related in his application, that the ice was created by leakage from the truck. However,petitioner testified at the hearing that he did not see any water leaking from the truck and hisassumption, first posited eight years following the accident, was based on the fact that there didnot seem to be any other explanation for the presence of the ice. Notably, the record is devoid ofany evidence of such a leak.
Additionally, the Comptroller's decision relies on the premise that encountering slick or icysurfaces was "inherent" in petitioner's performance of his job during winter. While this Court hasheld that a fall occasioned by a slippery surface is not an accident when that condition could havebeen reasonably anticipated (see Matterof O'Neill v DiNapoli, 83 AD3d 1280, 1281 [2011] [the petitioner slipped on ice whilestepping over 18-inch snow bank on snow-covered sidewalk]; Matter of Stymiloski v DiNapoli, 64AD3d 865, 866 [2009] [the petitioner witnessed fire department douse area with water insub-freezing weather]; Matter ofCampbell v DiNapoli, 56 AD3d 940, 941 [2008] [the petitioner slipped and fell on icethat accumulated while he was fighting a fire in sub-freezing temperatures]), "a denial upon suchground must be supported by the record and not rest merely upon speculation" (Matter of Tierney v New York StateComptroller, 90 AD3d 1215, 1215-1216 [2011]). Indeed, we have never countenanced adoctrine, and cannot do so now, that would hold that any slip and fall during the course of workperformed outside during winter renders that event foreseeable (see e.g. Matter of Sullivan vRegan, 133 AD2d 993, 993-994 [1987]). As such, we find that the Comptroller's decision isnot supported by substantial evidence and the determination must be annulled.
Lahtinen, J.P., Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent Comptroller for further proceedingsnot inconsistent with this Court's decision.