| Matter of Madaffari v DiNapoli |
| 2013 NY Slip Op 01895 [104 AD3d 1047] |
| March 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Richard J. Madaffari,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Garry, J. 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.
In June 2009, petitioner, a police officer, was injured when he fell after stepping on abroken and uneven portion of sidewalk when exiting his patrol car in the precinctparking lot. He thereafter applied for performance of duty and accidental disabilityretirement benefits. His application for performance of duty disability retirement benefitswas approved, but the application for accidental disability retirement benefits wasinitially denied. Following petitioner's request for a hearing and a redetermination, theHearing Officer found that petitioner had established that the incident constituted anaccident within the meaning of the Retirement and Social Security Law. Upon review,respondent reversed that determination and denied the application, prompting petitionerto commence this CPLR article 78 proceeding.
We confirm. As the applicant, petitioner bore the burden of demonstrating hisentitlement to accidental disability retirement benefits, and respondent's determinationwill be [*2]upheld if supported by substantial evidence(see Matter of Assmann vDiNapoli, 95 AD3d 1487, 1488 [2012]; Matter of Tierney v New York State Comptroller, 90 AD3d1215, 1215 [2011]). Moreover, "[a]n accident within the meaning of the Retirementand Social Security Law is a sudden and extraordinary event that is unrelated to theordinary risks of employment" (Matter of Santorsola v McCall, 302 AD2d 727,728 [2003]). Accordingly, "injuries that arise out of an employee's own misstep orinattention will not merit an accidental disability determination" (Matter of Magrino v DiNapoli,64 AD3d 868, 869 [2009]; accord Matter of Magliato v DiNapoli, 78 AD3d 1457,1458 [2010]).
Here, petitioner fell when he stepped out of his patrol car onto a broken and unevenportion of a sidewalk in the parking lot of the precinct where he had worked for the pastnine years. Petitioner testified that it was a clear day and there was nothing obstructinghis ability to observe the sidewalk as he got out of the car, but that he did not notice thecondition of the sidewalk until after he had fallen. In our view, petitioner has failed todemonstrate that the condition of the sidewalk was not readily observable prior to his fallor that his injury was caused by anything other than his own inattention or misstep (see Matter of Meyer v New YorkState Comptroller, 92 AD3d 1122, 1123 [2012]; Matter of Piccinini v DiNapoli,68 AD3d 1212, 1212-1213 [2009]). Accordingly, we conclude that respondent'sdetermination is supported by substantial evidence and it will not be disturbed.
Mercure, J.P., Rose and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.