| Matter of Assmann v DiNapoli |
| 2012 NY Slip Op 03701 [95 AD3d 1487] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Carole A. Assmann,Petitioner, v Thomas P. DiNapoli, as Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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.
In July 2008, petitioner, a clerk typist, was assigned to fill in for another employee, the latterof whom worked in a building adjacent to petitioner's regular work location. While deliveringsome paperwork during the course of her temporary assignment, petitioner slipped and fell downa set of stairs, sustaining various injuries. Petitioner's subsequent application for accidentaldisability retirement benefits was denied upon the ground that the incident did not constitute anaccident within the meaning of the Retirement and Social Security Law. Following a hearing andredetermination, a Hearing Officer reached a similar conclusion. Respondent thereafter adoptedthe Hearing Officer's decision, prompting petitioner to commence this CPLR article 78proceeding to challenge that determination.
We confirm. As the applicant, petitioner bore the burden of demonstrating her entitlement toaccidental disability retirement benefits, and respondent's determination in this regard, ifsupported by substantial evidence in the record as a whole, will be upheld (see Matter [*2]of Bleeker v New York State Comptroller, 84 AD3d 1683,1683 [2011], lv denied 17 NY3d 709 [2011]; Matter of Sorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010]).Notably, "injuries that arise out of an employee's own misstep or inattention will not merit anaccidental disability determination" (Matter of Piccinini v DiNapoli, 68 AD3d 1212, 1212 [2009][internal quotation marks and citation omitted]; accord Matter of Chilelli v DiNapoli, 91 AD3d 1098, 1098 [2012]).
Although petitioner testified at the hearing that her fall was occasioned by the "highlyvarnished" nature of the stairs in question, the incident reports completed by petitioner and heremployer shortly after petitioner's fall make no mention of this allegedly hazardous condition,and the record reflects that petitioner traversed the stairs without incident at least once before shefell. "Any discrepancy between petitioner's hearing testimony and the written documentationregarding the condition of the stairs or the cause of petitioner's fall presented a credibility issuefor the Hearing Officer to resolve" (Matter of Sorrentino v DiNapoli, 74 AD3d at 1695[citation omitted]; see Matter of Hardy vDiNapoli, 82 AD3d 1490, 1491 [2011]). As the record contains substantial evidencefrom which respondent could conclude that petitioner's fall was occasioned by her own misstepduring the course of her ordinary employment duties, the underlying determination will not bedisturbed (see Matter of Hardy v DiNapoli, 82 AD3d at 1491; Matter of West v DiNapoli, 79 AD3d1565, 1566 [2010]). Petitioner's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.