| Matter of White v DiNapoli |
| 2012 NY Slip Op 02749 [94 AD3d 1290] |
| April 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Isaac J. White, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 which deniedpetitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer, filed an application for performance of duty disabilityretirement benefits, alleging, among other things, that he was permanently incapacitated due to ashoulder injury sustained on July 8, 2006.[FN*] According to petitioner, he was supervising a work crew of inmates stripping dirty wax off afloor when he turned to inspect a kitchen sink that had just been cleaned. As he turned back, hestepped on some slippery stripping chemicals and injured his rotator cuff as he grabbed the wallto try and avoid falling. The application was [*2]initially deniedand petitioner sought a hearing and a redetermination. Following a hearing, the Hearing Officerdenied the application, finding that petitioner's injury was caused by his own inattention and wasnot "the result of an act of [an] inmate." Respondent adopted the Hearing Officer's findings andthis CPLR article 78 proceeding ensued.
We confirm. As the applicant, petitioner bore the burden of demonstrating that the incidentwas "the natural and proximate result of any act of any inmate" (Retirement and Social SecurityLaw § 607-c [a]). Here, petitioner was supervising inmates while they waxed floors, thetype of routine chore this Court has specifically held "does not constitute an act of an inmate forthe purposes of awarding performance of duty disability retirement benefits" (Matter of Parish v DiNapoli, 89 AD3d1315, 1317 [2011]). Although petitioner testified that he fell because the inmate strippingthe floor did not comply with his order to work on the opposite side of the room from where hewas injured, such a circumstance, even if credited, would not fulfill the statute's requirement that"a correction officer's injuries be caused by direct interaction with an inmate" (Matter of Davis v DiNapoli, 56 AD3d933, 934 [2008] [internal quotation marks and citation omitted]; see Matter of Koziuk v New York StateComptroller, 78 AD3d 1458, 1459 [2010]).
Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Although petitioner originallyalleged in his application that a July 28, 2006 incident also constituted a qualifying act of aninmate, this claim was withdrawn at the hearing.