| Matter of Canner v New York State Comptroller |
| 2012 NY Slip Op 05784 [97 AD3d 1091] |
| July 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of James E. Canner, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Kavanagh, 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 respondentComptroller which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police sergeant charged with supervising large-scale narcotics investigations,applied for accidental disability retirement benefits claiming that he is permanently incapacitatedas the result of a work-related injury to his right wrist that occurred on the evening of September13, 2007. Specifically, petitioner claimed that, while he and two fellow officers were looking fora discreet location from which they could observe a controlled drug buy, he exited an unmarkedpolice car onto a dimly lit street and tripped over a loose piece of concrete causing him to fallonto a partially-constructed sidewalk. After his application was initially disapproved, petitionerrequested a redetermination, and a hearing was held. The Hearing Officer subsequentlydetermined that the incident qualified as an accident within the meaning of Retirement and SocialSecurity Law § 363. Upon review, respondent Comptroller reversed that determination anddenied petitioner's application, prompting petitioner to commence this CPLR article 78proceeding.
We confirm. The Comptroller's determination that petitioner's injury was not caused by [*2]an accident within the meaning of the Retirement and SocialSecurity Law will be upheld if supported by substantial evidence (see Matter of Purcell v DiNapoli, 81AD3d 1069, 1070 [2011]; Matter ofCarducci v DiNapoli, 77 AD3d 1052, 1052 [2010]). "Significantly, an incident does notqualify as an accident justifying the award of accidental disability retirement benefits where theinjury results from an expected or foreseeable event arising during the performance of routineemployment duties" (Matter of O'Brienv Hevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005] [citationsomitted]; accord Matter of Murray vNew York State Comptroller, 84 AD3d 1681, 1682 [2011]; Matter of Hardy v DiNapoli, 82 AD3d1490, 1490 [2011]). Rather, "[t]he precipitating event must emanate from a risk that is notan inherent element of the petitioner's regular employment duties" (Matter of Amadio v McCall, 2 AD3d1131, 1132 [2003]; accord Matterof Henry v DiNapoli, 82 AD3d 1446, 1447 [2011]).
Here, petitioner testified that finding locations that can be used as observation sites innarcotics investigations is a routine chore he performs as a police officer and, given the nature ofthe investigation, is something that must be done "under the cover of darkness." The risk that onecould fall over an unseen obstacle while conducting such a search is inherent in petitioner'sperformance of his official responsibilities and, therefore, the Comptroller's determination thatthis was not an accident within the meaning of the Retirement and Social Security Law issupported by substantial evidence (seeMatter of Sweeney v New York State Comptroller, 86 AD3d 893, 893-894 [2011];Matter of Murray v New York State Comptroller, 84 AD3d at 1682; Matter of Neidecker v DiNapoli, 82AD3d 1483, 1484 [2011]; Matter ofFischer v New York State Comptroller, 46 AD3d 1006, 1006 [2007]).
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.