| Matter of Sikoryak v DiNapoli |
| 2013 NY Slip Op 01891 [104 AD3d 1042] |
| March 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of John J. Sikoryak,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 ofrespondent which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a police officer, applied for accidental disability retirement benefitsalleging that he is permanently disabled due to an injury to his right shoulder that hesustained in an employment-related incident occurring on March 27, 2009. Petitioner'sapplication was initially denied and he sought a hearing and redetermination. Followingthe hearing, the Hearing Officer denied the application, finding that the incident did notconstitute an accident within the meaning of the Retirement and Social Security Law.Respondent accepted the decision of the Hearing Officer and petitioner commenced thisproceeding pursuant to CPLR article 78 challenging that determination.
We confirm. "Petitioner bears the burden of proving that his injury was accidental,and respondent's determination will be upheld if supported by substantial evidence" (Matter of Lenci v DiNapoli, 92AD3d 1078, 1078 [2012] [citations omitted]; see Matter of Murphy v New York [*2]State Comptroller, 92 AD3d 1022, 1022 [2012]).Notably, "an incident does not qualify as an accident justifying the award of accidentaldisability retirement benefits where the injury results from an expected or foreseeableevent arising during the performance of routine employment duties" (Matter of O'Brien v Hevesi, 12AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; see Matter of Canner v New YorkState Comptroller, 97 AD3d 1091, 1092 [2012], lv denied 20 NY3d 851[2012]; Matter of Murray vNew York State Comptroller, 84 AD3d 1681, 1682 [2011]). "Rather, [t]heprecipitating event must emanate from a risk that is not an inherent element of thepetitioner's regular employment duties" (Matter of Canner v New York StateComptroller, 97 AD3d at 1092 [internal quotation marks and citation omitted]; accord Matter of Henry vDiNapoli, 82 AD3d 1446, 1447 [2011]).
Here, petitioner testified that, at approximately 9:15 a.m. on the date of the incident,he and his partner responded to a report that children were trespassing inside a vacantand abandoned school that he knew had been in disrepair for some time with debris andlitter visible "all around the property." Upon entering the dimly-lit building to search forthe children, petitioner walked down one step, then took a second step onto what hethought was dirt on the floor. Instead, it was "a pile of debris" and he fell, injuring hisright arm. He stated that, at the time he stepped down, his foot went through the debris,which "collapsed under [him]." Significantly, petitioner acknowledged that part of hisduties included entering into and searching strange buildings where he ran the risk of"running into conditions that are less than desirable." Inasmuch as the risk of falling asthe result of an "unseen obstacle" while performing such duties is "inherent in petitioner'sperformance of his [duties]" (Matter of Canner v New York State Comptroller,97 AD3d at 1092; see Matter of Murray v New York State Comptroller, 84AD3d at 1682), we find there is substantial evidence supporting respondent'sdetermination that the subject incident did not qualify as an accident under the statute.
Stein, Spain and Egan Jr., JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.