| Matter of Sullivan v DiNapoli |
| 2012 NY Slip Op 03927 [95 AD3d 1558] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Daniel W. Sullivan,Petitioner, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold 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.
Petitioner worked as an investigator for the Department of Environmental Conservation for31 years. During that time, he was involved in a lengthy undercover operation to identifyindividuals involved in the illegal taking, transportation and commercialization of protectedwildlife. On January 6, 2008, in the course of this work, he and his partner attended a largeherpetology show where they believed several targets of their investigation would be buying andselling illegal wildlife. During the show, petitioner made arrangements with two of theseindividuals to purchase 30 protected amphibians and seven copperhead snakes which he plannedto transport in the bed of an undercover pick-up truck covered by a fiberglass cap. After theshow, he and his partner met with these individuals and they delivered the reptiles in two largeTupperware containers. The container holding the venomous snakes did not have a secure lid.After lowering the tailgate and opening the cap, petitioner climbed into the bed of the truck,[*2]which was approximately 3½ to 4 feet from the ground,and secured the container holding the snakes. He was anxious to exit the bed of the truck todistance himself from the snakes and to continue to obtain an audio recording of the targetedindividuals on his undercover wire. Petitioner bent down to lower himself from the tailgate to theground and, in doing so, landed hard injuring both knees. His application for accidental disabilityretirement benefits was initially denied, but a Hearing Officer subsequently ruled that the January6, 2008 incident precipitating petitioner's injury constituted an accident within the meaning of theRetirement and Social Security Law. Respondent Comptroller, however, disagreed and deniedpetitioner's application. This CPLR article 78 proceeding ensued.
Initially, we note that the burden is on the party seeking to obtain accidental disabilityretirement benefits to establish that the incident in question constituted an accident, and theComptroller's determination in this regard will be upheld if supported by substantial evidence (see Matter of Clarke v Murray, 85AD3d 1536, 1537 [2011]; Matter ofSorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010]). An accident has been defined, forpurposes of the Retirement and Social Security Law, as "a 'sudden, fortuitous mischance,unexpected, out of the ordinary, and injurious in impact' " (Matter of Lichtenstein v Board ofTrustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010,1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d97, 100 [1958], affd 7 NY2d 222 [1959]; see Matter of Geraci v Hevesi, 37 AD3d 941, 942 [2007]). Notably," 'an injury which occurs without an unexpected event as the result of activity undertaken in theperformance of ordinary employment duties, considered in view of the particular employment inquestion, is not an accidental injury' " (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008], quotingMatter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City ofN.Y., Art. II, 57 NY2d at 1012; seeMatter of Neidecker v DiNapoli, 82 AD3d 1483, 1483-1484 [2011]).
As part of his duties as an investigator, petitioner participated in surveillance activitiesrelated to undercover illegal wildlife trafficking operations for a period of three years. Hisinvolvement in transactions resulting in the sale and exchange of illegal wildlife, some of whichmight be venomous, was thus foreseeable. Although one might not expect venomous snakes tobe transported in a nonsecure manner, there is nothing in the record to indicate that the lid of thecontainer was ajar or that there was another obvious hazard present that constituted a sudden,unexpected and out of the ordinary event precipitating petitioner's injury. Indeed, according topetitioner's own testimony, although he wished to distance himself from the snakes and resumeaudio recording of the targeted individuals, he stepped down from the tailgate in a very carefuland gingerly manner when exiting the bed of the truck. Under the circumstances presented,substantial evidence supports the Comptroller's determination that the incident did not constitutean accident within the meaning of the Retirement and Social Security Law, and we find noreason to disturb his determination (see Matter of Neidecker v DiNapoli, 82 AD3d at1483-1484; Matter of O'Brien v NewYork State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708[2009]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.