| Matter of Smith v New York State & Local RetirementSys. |
| 2013 NY Slip Op 00973 [103 AD3d 966] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Paul H. Smith, Petitioner, v New YorkState and Local Retirement System, 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 byorder of the Supreme Court, entered in Albany County) to review a determination of theComptroller which denied petitioner's application for disability retirement benefits.
Petitioner was a maintenance worker at the Carthage Central School District inJefferson County. He and another employee were assigned to repair the masonry in thewalls of an elevator shaft. They stopped the elevator between floors so that the roof ofthe elevator was two to four feet above the hall floor. They placed a sheet of heavyplastic over the roof of the elevator to protect it from mortar debris, as directed by theirsupervisor. They then placed a smaller sheet of plywood on the plastic to provide asurface upon which to place a ladder. They braced the plywood against bars on top of theelevator and then positioned a 15-foot extension ladder on top of it, resting the ladderagainst the elevator shaft.
It was petitioner's job to apply the mortar from the ladder while his coworkerremained in the hallway mixing the mortar. While petitioner was on the ladder, the ladderslid off the elevator roof and fell in the hallway. As a result, petitioner fell, injuring hisfoot and ankle. He subsequently applied for disability retirement benefits underRetirement and Social Security Law article 15. A Hearing Officer ruled that petitionerwas entitled to receive such benefits because [*2]theevent in question constituted an accident within the meaning of Retirement and SocialSecurity Law § 605. The Comptroller later reversed this decision and deniedpetitioner's application. This CPLR article 78 proceeding ensued.
The party seeking disability retirement benefits bears the burden of demonstratingthat the incident causing his or her injury was an accident, which has been defined fordisability purposes as " 'a sudden, fortuitous mischance, unexpected, out of the ordinary,and injurious in impact' " (Matter of Lichtenstein v Board of Trustees of PolicePension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982],quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97,100 [1958], affd 7 NY2d 222 [1959]). "[A]n injury which occurs without anunexpected event as the result of activity undertaken in the performance of ordinaryemployment duties, considered in view of the particular employment in question, is notan accidental injury" (Matter ofKenny v DiNapoli, 11 NY3d 873, 874 [2008] [internal quotation marks andcitation omitted]).
Both petitioner and the individual working with him testified that either the plywoodslipped on the plastic or the ladder slipped on the plywood. The result, as explained bythese individuals, was that the bottom of the ladder came off the roof of the elevator andinto the hallway, with petitioner falling. There was no evidence that the fall occurred as aresult of a misstep by petitioner on the ladder or in any fashion other than as explained bypetitioner and his coworker. The fact that they were not sure of the exact cause is notfatal to petitioner's application since we agree with the Hearing Officer that under eitherscenario (i.e., the plywood slipping on the plastic or the ladder slipping on the plywood),it was a sudden and unexpected event constituting an accident as a matter of law whenthe ladder upon which petitioner was working slid off an elevator roof and droppedseveral feet into an adjoining hallway (see Matter of Starnella v Bratton, 92NY2d 836, 839 [1998]; Matter of Pratt v Regan, 68 NY2d 746, 747-748 [1986];Matter of McCambridge v McGuire, 62 NY2d 563, 568 [1984]; Matter of Murphy v New YorkState Comptroller, 92 AD3d 1022, 1022-1023 [2012]).
Mercure, J.P., Rose and Garry, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to the Comptroller for further proceedingsnot inconsistent with this Court's decision.