| Matter of Carrella v DiNapoli |
| 2012 NY Slip Op 06354 [98 AD3d 1220] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of Kenneth Carrella, Petitioner, v Thomas P.Dinapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
McCarthy, 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.
During his employment as a firefighter, petitioner was dispatched to assist a man who hadcollapsed in his bathroom. While tending to the victim, petitioner apparently slipped on urine onthe bathroom floor, which caused the victim's body to fall on petitioner's right leg, injuring hisknee. Petitioner's application for accidental disability retirement benefits was denied on theground that the incident was not an accident within the meaning of Retirement and SocialSecurity Law § 363. Following a hearing, a Hearing Officer denied the application on thesame ground, and respondent accepted that determination, prompting petitioner to commencethis proceeding.
We confirm. Petitioner acknowledged that by assisting the victim he was performing hisordinary duties as a firefighter. "[A]n injury which occurs without an unexpected event as theresult of activity undertaken in the performance of ordinary employment duties, considered in[*2]view of the particular employment in question, is not anaccidental injury" within the meaning of Retirement and Social Security Law § 363(Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City ofN.Y., Art. II, 57 NY2d 1010, 1012 [1982]; see Matter of Sweeney v New York State Comptroller, 86 AD3d893, 893 [2011]). Encountering a wet surface while assisting a victim who has collapsed ona bathroom floor is not an unexpected event, even if petitioner was unaware of the particularliquid that caused him to slip. Accordingly, under these circumstances, substantial evidencesupports respondent's determination that petitioner's injury resulted from a risk inherent in theperformance of his ordinary duties (seeMatter of Murray v New York State Comptroller, 84 AD3d 1681, 1682 [2011]; Matter of Coon v New York StateComptroller, 30 AD3d 884, 885 [2006], lv denied 7 NY3d 717 [2006]; Matter of Lucian v McCall, 7 AD3d905, 906 [2004]).
Rose, J.P., Spain, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.