| Matter of Messina v New York State & Local Employees'Retirement Sys. |
| 2013 NY Slip Op 00528 [102 AD3d 1068] |
| January 31, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jill A. Messina, Petitioner, v New YorkState and Local Employees' Retirement System, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination of theComptroller which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a police officer, applied for accidental disability retirement benefitsfollowing an incident in which she slipped on ice near the front door of the precinct andinjured her left knee. The application was denied upon the ground that the incident didnot constitute an "accident" within the meaning of Retirement and Social Security Law§ 363. Following a hearing and redetermination, the Hearing Officer reached thesame conclusion and the Comptroller upheld the decision, prompting this CPLR article78 proceeding.
We confirm. Petitioner bore the burden of establishing that her injuries were theresult of an accident, and the Comptroller's determination will be upheld if supported bysubstantial evidence (see Matterof Sweeney v New York State Comptroller, 86 AD3d 893, 893 [2011]; Matter of O'Neill v DiNapoli,83 AD3d 1280, 1280 [2011]). It is well settled that "an incident does not qualify asan accident justifying the award of accidental disability retirement benefits [*2]where the injury results from an expected or foreseeableevent arising from the performance of routine employment duties" (Matter of O'Brien v Hevesi, 12AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; accord Matter of Ruggiero vDiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711[2011]).
The record contains certified copies of weather reports that indicate that freezing rainfell intermittently in the area on the night in question from approximately 9:30 p.m. until3:00 a.m. Further, a contemporaneous incident report prepared by a fellow police officerindicates that petitioner fell "due to the inclement weather." "The assessment ofpetitioner's sworn testimony, as well as the evaluation of any apparent inconsistencybetween such testimony and the written documentation, presented credibility issues forthe Hearing Officer and, ultimately, the Comptroller to resolve" (Matter of Hardy v DiNapoli,82 AD3d 1490, 1491 [2011] [citation omitted]; see Matter of Carpiniello v DiNapoli, 88 AD3d 1045, 1046[2011]). Inasmuch as there is substantial evidence in the record that the icy conditionpresented a hazard that petitioner should have reasonably anticipated given the weatherconditions (see Matter of Ruggiero v DiNapoli, 85 AD3d at 1283; Matter of Kempkes vDiNapoli, 81 AD3d 1071, 1072 [2011]), it will not be disturbed.
Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.