| Matter of Sammon v DiNapoli |
| 2012 NY Slip Op 05587 [97 AD3d 952] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Michael M. Sammon, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a 14-year veteran of the fire department in the City of Yonkers, WestchesterCounty, was injured in August 2008 when, while exiting the fire truck to address an automobilefire, his foot gave way on a slippery spot on the ground and he fell. After the resulting injuries tohis back and foot rendered him unable to continue with his employment, petitioner filedapplications for performance of duty and accidental disability retirement benefits. Petitioner wasgranted performance of duty disability benefits but, following a hearing on whether the incidentconstituted an accident, his application for accidental disability retirement benefits was ultimatelydenied by respondent. Thereafter, petitioner commenced this CPLR article 78 proceeding tochallenge that determination.
We annul. To qualify as an accident within the meaning of Retirement and Social [*2]Security Law § 363, the "cause of the injury must be asudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of O'Brien v New York StateComptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708 [2009] [internalquotation marks and citations omitted]), and the burden rests on the petitioner to demonstrate thatthe injury was accidental (see Matter ofStone v New York State Comptroller, 90 AD3d 1377, 1378 [2011], lv denied 18NY3d 810 [2012]; Matter of Gregg vDiNapoli, 86 AD3d 850, 850 [2011]). With regard to slip and fall incidents, the questionof whether an accident occurred turns on whether the condition that caused the slip could havebeen "reasonably anticipated" (Matter ofMurphy v New York State Comptroller, 92 AD3d 1022, 1023 [2012]; see Matter of Randolph v DiNapoli, 85AD3d 1288, 1289 [2011]).
Here, both petitioner and his coworker testified that the spot on the ground on whichpetitioner slipped was an unknown substance that blended in with the roadway and was, thus,undetectable. Given that this event occurred during the summer and there is no indication thatthere was inclement weather, we cannot agree with respondent that the fact that sometimesslippery surfaces exist in public roadways is alone enough to conclude that petitioner should havereasonably anticipated the spot on which he slipped (see Matter of Pratt v Regan, 68NY2d 746, 747-748 [1986]; Matter of Murphy v New York State Comptroller, 92 AD3dat 1023; Matter of Tierney v New YorkState Comptroller, 90 AD3d 1215, 1216 [2011]; compare Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283[2011], lv denied 17 NY3d 711 [2011] [although the petitioner was not aware of ice priorto fall, he observed snow on ground and acknowledged parking lot iced over in past]; Matterof Avery v McCall, 308 AD2d 677, 678 [2003] [while the petitioner did not see oilysubstance on stairs, building inspector warned him just prior to fall that stairs were slippery]).Accordingly, we do not find respondent's determination to be supported by substantial evidence.
Rose, J.P., Spain, Kavanagh and Egan Jr., JJ., concur. Adjudged that the determination isannulled, without costs, petition granted, and matter remitted to respondent for furtherproceedings not inconsistent with this Court's decision.