| Matter of Lenci v DiNapoli |
| 2012 NY Slip Op 00895 [92 AD3d 1078] |
| February 9, 2012 |
| Appellate Division, Third Department |
| In the Matter of Marc Lenci, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Garry, 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 applied for accidental disability retirement benefits based upon several incidentsthat occurred throughout his tenure as a police officer. Respondent denied petitioner'sapplication, finding that none of the incidents constituted accidents within the meaning of theRetirement and Social Security Law, and the notice requirement was not met with regard to theincident alleged to have occurred on November 16, 2000. Petitioner thereafter commenced thisproceeding pursuant to CPLR article 78, contending that the incident occurring on November 16,2000 does constitute an accident and that adequate notice of the incident was provided.
Petitioner bears the burden of proving that his injury was accidental, and respondent'sdetermination will be upheld if supported by substantial evidence (see Matter of Kempkes v DiNapoli, 81AD3d 1071, 1072 [2011]; Matter ofCarducci v DiNapoli, 77 AD3d 1052, 1052 [2010]). An injury is accidental within themeaning of the Retirement and Social Security Law if [*2]itarises out of a "sudden, fortuitous mischance" that is unexpected and unrelated to the ordinaryrisks of the petitioner's job duties (Matter of Hulse v DiNapoli, 70 AD3d 1235, 1236 [2010] [internalquotation marks and citations omitted]; see Matter of Kempkes v DiNapoli, 81 AD3d at1072; Matter of Carducci v DiNapoli, 77 AD3d at 1052-1053). Petitioner testified thatwhile he was providing emergency assistance to a citizen who was trapped beneath concretepieces atop a "precarious" and "off kilter" scaffolding, the scaffolding shifted, causing petitionerto injure his back. Petitioner's job duties included responding to various types of emergencies andproviding assistance to citizens in need; accordingly, we find that petitioner's injury occurredwhile he was performing his ordinary job duties, was within the normal risks inherent in theperformance of those duties, and could have reasonably been anticipated (see Matter ofKempkes v DiNapoli, 81 AD3d at 1072; Matter of Franks v New York State & Local Retirement Sys., 47 AD3d1115, 1116 [2008]). As respondent's denial of petitioner's application on this basis issupported by substantial evidence, we need not consider petitioner's remaining argument.
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.