| Matter of Carpenter v DiNapoli |
| 2013 NY Slip Op 01888 [104 AD3d 1037] |
| March 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Scott W. Carpenter,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 ofrespondent which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a police officer, was injured while attempting to subdue a mentallydisabled individual who was throwing rocks at motor vehicles. Following petitioner'srequest for a hearing, the Hearing Officer denied his application for accidental disabilityretirement benefits, finding that the incident did not constitute an accident within themeaning of the Retirement and Social Security Law. Respondent adopted thatdetermination, prompting this CPLR article 78 proceeding.
We confirm. "Petitioner bore the burden of proving entitlement to accidentaldisability retirement benefits and [respondent's] determination will be upheld ifsupported by substantial evidence" (Matter of Bleeker v New York State Comptroller, 84 AD3d1683, 1683 [2011], lv denied 17 NY3d 709 [2011] [citation omitted]; accord Matter of Butrico v NewYork State Comptroller, 97 AD3d 1033, 1034 [2012]). To obtain accidentaldisability retirement benefits, a [*2]petitioner mustdemonstrate that the underlying accident was " 'a sudden, fortuitous, out of the ordinaryand unexpected event that does not result from an activity undertaken in the performanceof regular or routine employment duties' " (Matter of Welsh v New York State Comptroller, 67 AD3d1167, 1168 [2009], lv denied 14 NY3d 706 [2010], quoting Matter ofDzwielewski v McCall, 277 AD2d 622, 622 [2000]; accord Matter of Murphy v NewYork State Comptroller, 92 AD3d 1022, 1022 [2012]).
Petitioner testified that he knew the suspect, who flailed his arm at petitioner whenhe approached; petitioner then grabbed the suspect in a bear hug. The suspect's bodywent limp and both he and petitioner fell to the ground, with the suspect landing on topof petitioner. The suspect then began to cry. The risk of injury resulting from restrainingemotionally disturbed individuals is an inherent risk of a police officer's duties (see Matter of Reynolds vDiNapoli, 97 AD3d 892, 893 [2012]; Matter of Rykala v New York State Comptroller, 92 AD3d1077, 1078 [2012]; Matterof Carpiniello v DiNapoli, 88 AD3d 1045, 1046 [2011]). Accordingly,respondent's determination that the incident did not constitute an accident within themeaning of the Retirement and Social Security Law is supported by substantial evidenceand will not be disturbed (seeMatter of Jarosz v DiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of Olivera v New YorkState & Local Employees' Retirement Sys., 82 AD3d 1434, 1435 [2011];Matter of Welsh v New York State Comptroller, 67 AD3d at 1169). Petitioner'sremaining argument has been considered and found to be lacking in merit.
Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.