| Matter of Brown v Kelly |
| 2012 NY Slip Op 07603 [100 AD3d 480] |
| November 13, 2012 |
| Appellate Division, First Department |
| In the Matter of Ralph C. Brown, Appellant, v RaymondKelly as Police Commissioner of the City of New York and as Chairman of the Board ofTrustees of the Police Pension Fund, Article II, et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), forrespondents.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered June 20, 2011,denying the petition to annul respondents' denial of accidental disability retirement (ADR)benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimouslyaffirmed, without costs.
Petitioner was injured while changing from street clothes to his uniform. His firearmdischarged when a radio antenna in his locker lodged in the trigger, releasing the safetymechanism. The bullet injured petitioner's right hand, rendering him unable to perform the fullduties of a police officer. An investigation by respondents resulted in a finding of "AccidentalDischarge, Violation" resulting from petitioner's "disregard for proper firearms safety."
The denial of ADR based on a tie vote of the Board of Trustees can be set aside on judicialreview only if the court concludes that the retiree is entitled to greater benefits as a matter of lawon a record that the disability was the natural and proximate result of a service-related accident(see Matter of McCambridge v McGuire, 62 NY2d 563, 568 [1984]). An accident is a"sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"(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] [internal quotation marks omitted]). Injuriessustained while performing routine duties, but not resulting from unexpected events, are notaccidents (see Matter of Starnella v Bratton, 92 NY2d 836, 839 [1998];McCambridge at 568).
Petitioner failed to establish as a matter of law that his injuries resulted from an accident orout of the ordinary event. Petitioner was aware that special safety precautions were required[*2]when handling a firearm, and respondents' conclusion that hisnegligence caused the gun to discharge was rationally based (see e.g. Matter of Dalton v Kelly, 16 AD3d 200 [1st Dept 2005],lv denied 10 NY3d 705 [2008]). Concur—Mazzarelli, J.P., Moskowitz, Richter,Abdus-Salaam and Feinman, JJ. [Prior Case History: 2011 NY Slip Op 31644(U).]