| Matter of Kilbride v New York State Comptroller |
| 2012 NY Slip Op 03706 [95 AD3d 1496] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Michael J. Kilbride,Petitioner, v New York State Comptroller et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
On January 14, 2009, petitioner, a court officer sergeant, was on duty when he was injured byan "unruly defendant" bursting into the courtroom. In his application for accidental disabilityretirement benefits, petitioner stated that the incident occurred as he "was attempting to preventan angry defendant from attacking the judge. He charged at the judge knocking me to theground." The application was denied and petitioner sought a hearing and a redetermination.Following a hearing, the Hearing Officer denied the application, finding that petitioner did notestablish that the incident was an accident within the meaning of Retirement and Social SecurityLaw § 605-a. Respondent Comptroller adopted the Hearing Officer's findings, and thisCPLR article 78 proceeding ensued.
We confirm. To qualify for "accidental disability retirement benefits, the underlying accidentmust be a sudden, fortuitous, out of the ordinary and unexpected event that does not result froman activity undertaken in the performance of regular or routine employment duties" (Matter of Rykala v New York StateComptroller, 92 AD3d 1077, 1077 [2012] [internal quotation marks and citationomitted]). Here, as noted by the Hearing Officer, petitioner's job duties included removing orrestraining disruptive individuals and providing security in the courtroom. While petitionertestified that he was not injured while attempting to defend a judge but was, in fact, the passivevictim of an assault, the Hearing Officer determined that petitioner's hearing testimony was lesscredible than his earlier written account contained in his application for benefits. Although therecord contains proof from which it could be concluded that petitioner was injured as the resultof an assault, this does not negate the substantial evidence supporting the finding that petitioner'sinjury was caused by physical contact of the sort that is inherent in the routine performance of hisduties (see Matter of Wise v New YorkState Comptroller, 38 AD3d 1032, 1033-1034 [2007], lv denied 9 NY3d 811[2007]; Matter of Ammann v New YorkState Comptroller, 13 AD3d 858, 859 [2004], lv denied 5 NY3d 702 [2005]).
Peters, P.J., Mercure, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.