| Matter of Suppa v DiNapoli |
| 2012 NY Slip Op 08622 [101 AD3d 1348] |
| December 13, 2012 |
| Appellate Division, Third Department |
| In the Matter of Frank J. Suppa, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, 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 whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police detective, was standing on a retaining wall made up of loose stonesconducting surveillance on a robbery suspect when the stone he was standing on shifted androlled off of the wall, causing him to slip and injure his back and right knee. He thereafterapplied for performance of duty and accidental disability retirement benefits, claiming he waspermanently disabled from performing his duties as a police detective as a result of his injuries.Petitioner was awarded performance of duty retirement benefits, but his application foraccidental disability retirement benefits was denied by respondent on the ground that the incidentdid not constitute an accident within the meaning of the Retirement and Social Security Law.This CPLR article 78 proceeding ensued.
We confirm. "Petitioner bears the burden of proving that his injury was accidental, and [*2]respondent's determination will be upheld if supported bysubstantial evidence" (Matter of Lenci vDiNapoli, 92 AD3d 1078, 1078 [2012]; see Matter of Murphy v New York State Comptroller, 92 AD3d1022, 1022 [2012]). An accident, under the meaning of the Retirement and Social SecurityLaw, is "a sudden, fortuitous mischance [which is] unexpected [and] out of the ordinary" (Matter of Hulse v DiNapoli, 70 AD3d1235, 1236 [2010] [internal quotation marks and citations omitted]; accord Matter of Kempkes v DiNapoli,81 AD3d 1071, 1072 [2011]). Moreover, "an incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where the injury results from anexpected or foreseeable event arising during the performance of routine employment duties" (Matter of O'Brien v Hevesi, 12 AD3d895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; accord Matter of Canner v New York StateComptroller, 97 AD3d 1091, 1092 [2012], lv denied 20 NY3d 851 [2012]; Matter of Murray v New York StateComptroller, 84 AD3d 1681, 1682 [2011]).
Here, petitioner testified that he was performing a routine job duty when he was injured.Further, he stated that he was aware that the stone wall that he climbed upon was made up of"large loose boulders" that were merely piled on top of each other, without anything holding theboulders together. Under these circumstances, the possibility that one of the boulders wouldcome loose under petitioner's weight as he was standing on it was a foreseeable event.Accordingly, substantial evidence supports respondent's determination that the incident did notconstitute an accident within the meaning of the Retirement and Social Security Law (see Matter of Kenny v DiNapoli, 11NY3d 873,875 [2008]; Matter of Sullivan vDiNapoli, 95 AD3d 1558, 1560 [2012]).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.