| Matter of Conroy v Murray |
| 2013 NY Slip Op 00533 [102 AD3d 1074] |
| January 31, 2013 |
| Appellate Division, Third Department |
| In the Matter of John A. Conroy, Petitioner, v Kevin F.Murray, as Deputy State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Rose, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof 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 sergeant, applied for accidental disability retirement benefitsalleging that he is permanently disabled due to left knee injuries he sustained in twoemployment-related accidents occurring on September 9, 1990 and March 15, 1993.Following a hearing, the Hearing Officer denied the application, finding that neitherincident constituted an accident within the meaning of Retirement and Social SecurityLaw § 363. The Comptroller accepted the decision of the Hearing Officer andpetitioner commenced this proceeding pursuant to CPLR article 78 challenging thatdetermination.
Initially, the Comptroller concedes, and we agree, that the September 9, 1990incident was an accident and, therefore, the determination will be annulled to that extent.We find, however, that the Comptroller's determination that the March 15, 1993incident—whereby petitioner slipped and fell in the precinct parkinglot—was not an accident is supported by [*2]substantial evidence in the record. Significantly, "anincident does not qualify as an accident justifying the award of accidental disabilityretirement benefits where the injury results from an expected or foreseeable event arisingduring the performance of routine employment duties" (Matter of Ruggiero vDiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011][internal quotation marks and citations omitted]; see Matter of Hardy v DiNapoli, 82 AD3d 1490, 1490[2011]).
Here, petitioner testified that, on March 15, 1993 at approximately 3:00 p.m., heslipped on "unseen ice" while walking to his unmarked radio car in his work parking lot.He said that, although it had snowed approximately two days earlier, it was a "[f]ine, dry"and "sunny" day with no snow in the parking lot. According to petitioner, he hadpreviously gone to his car once or twice already that day, but there had been no ice at thattime and he speculated that possibly the ice came from snow melting and freezing due toa change in temperature. The Hearing Officer, noting that in the contemporaneousincident report petitioner related that he had fallen "due to the severe icy conditions," didnot find petitioner's testimony credible and concluded that the incident was not anaccident even if petitioner "did not actually see the hazardous condition until after [he]sustained his injury." Under these circumstances, we find no basis to disturb thedetermination that the March 15, 1993 incident was not an accident (see Matter ofRuggiero v DiNapoli, 85 AD3d at 1283; Matter of Hardy v DiNapoli, 82AD3d at 1491; Matter ofO'Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lvdenied 12 NY3d 708 [2009]).
Spain, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified,without costs, by annulling so much thereof as determined that the incident of September9, 1990 did not constitute an accident within the meaning of the Retirement and SocialSecurity Law; petition granted to that extent and matter remitted to the Comptroller forfurther proceedings not inconsistent with this Court's decision; and, as so modified,confirmed.