| Matter of Butrico v New York State Comptroller |
| 2012 NY Slip Op 05698 [97 AD3d 1033] |
| July 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of George R. Butrico, Petitioner, v New YorkState Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Stein, 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, a police officer for the Port Authority of New York and New Jersey, applied foraccidental disability retirement benefits claiming that he is permanently incapacitated as theresult of a work-related injury to his right knee. According to petitioner, at the beginning of thepatrol portion of his shift on the morning of January 10, 2009, he randomly chose a patrol carfrom his work parking lot and proceeded to inspect the exterior of the vehicle for damage. As hestepped into the driver's side of the vehicle, his right foot slid into a large tear in the rubber floormat and got caught, causing him to lose his balance and fall forward, badly twisting his knee.According to petitioner, he did not notice the defective condition prior to stepping down on themat and had never seen similar damage to the floor mats in any other patrol vehicles he haddriven.
Petitioner's application was initially denied and he sought a hearing and redetermination.Following that hearing, the Hearing Officer concluded that the above incident [*2]did not constitute an accident within the meaning of the Retirementand Social Security Law. Respondent Comptroller accepted the determination of the HearingOfficer and denied the application, prompting the commencement of this CPLR article 78proceeding.
We confirm. "Petitioner bore the burden of proving entitlement to accidental disabilityretirement benefits and the Comptroller's determination will be upheld if supported by substantialevidence" (Matter of Bleeker v NewYork State Comptroller, 84 AD3d 1683, 1683 [2011], lv denied 17 NY3d 709[2011] [citation omitted]). "An accident within the meaning of Retirement and Social SecurityLaw § 363 'is a sudden and extraordinary event that does not result from an activityperformed in the course of ordinary employment duties' " (Matter of Tomita v DiNapoli, 66 AD3d 1071, 1072 [2009], quotingMatter of Dooley v McCall, 252 AD2d 724, 724 [1998]; see Matter of Tierney v New York StateComptroller, 90 AD3d 1215, 1215 [2011]). Even if petitioner did not actually see thehazard until after his fall, benefits may "be denied where the hazard presented was one that thepetitioner could have reasonably anticipated" (Matter of Tierney v New York StateComptroller, 90 AD3d at 1215 [internal quotation marks and citations omitted]; seeMatter of Bleeker v New York State Comptroller, 84 AD3d at 1684).
Here, the application was denied on the basis that the defective condition of the floor matwas a foreseeable hazard that petitioner could have avoided had he inspected the interior of thevehicle. The injury report signed by petitioner's supervisor indicates that the torn floor matshould have been discovered by petitioner by means of an inspection of the vehicle at thebeginning of his "tour." Given that the hazard could have been reasonably anticipated throughvisual inspection, the Comptroller's determination is supported by substantial evidence in therecord, and we decline to disturb it.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.