| Matter of Hunce v DiNapoli |
| 2013 NY Slip Op 03902 [106 AD3d 1427] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joseph Hunce,Petitioner, v Thomas P. DiNapoli, as State Comptroller,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 ofrespondent which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a police lieutenant, was employed by the City of Mount Vernon PoliceDepartment in Westchester County for 18 years. On May 5, 1995, while on patrol in hismarked police vehicle, he responded to a call that an individual was breaking into a car.When he arrived at the scene of the break in, the suspect fled and he began pursuing thesuspect on foot. While in pursuit, petitioner came upon a chain-link fence approximatelyfive feet tall, located between him and the suspect, which he proceeded to climb. As heplaced one of his feet on the cross bar at the top of the fence, the bar bent inward underhis weight, causing him to fall to the ground and sustain injuries.
Petitioner subsequently applied for accidental disability retirement benefits under theRetirement and Social Security Law. His application was denied upon the ground that theincident did not constitute an accident within the meaning of Retirement and SocialSecurity Law § 363. Following a hearing, the Hearing Officer found otherwise andruled that the incident did [*2]constitute an accidentthereby entitling petitioner to receive accidental disability retirement benefits.Respondent, however, disagreed and denied petitioner's application. This CPLR article78 proceeding ensued.
In order to be considered an accident within the meaning of Retirement and SocialSecurity Law § 363, the precipitating event must be "a 'sudden, fortuitousmischance, unexpected, out of the ordinary, and injurious in impact' " (Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y.,Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. vIndemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222[1959]; see Matter of Kenny vDiNapoli, 11 NY3d 873, 874 [2008]; Matter of Ashley v DiNapoli, 97 AD3d 1057, 1058[2012]). Significantly, "an injury which occurs without an unexpected event as the resultof activity undertaken in the performance of ordinary employment duties, considered inview of the particular employment in question, is not an accidental injury" (Matter ofKenny v DiNapoli, 11 NY3d at 874 [internal quotation marks and citation omitted];see Matter of O'Shei vHevesi, 26 AD3d 585, 586 [2006]). The burden is upon the petitioner todemonstrate that the injury occurred as the result of an accident and respondent'sdetermination in this regard will be upheld if supported by substantial evidence (see Matter of Suppa vDiNapoli, 101 AD3d 1348, 1348 [2012]; Matter of Baron v DiNapoli, 57 AD3d 1202, 1203 [2008]).
At the time he was injured, petitioner was performing his regular duties pursuing afleeing suspect on foot as he had done many times before. This Court has recognized thatthe "pursuit of suspects is an ordinary employment duty of a police officer" (Matter of Melendez v New YorkState Comptroller, 54 AD3d 1128, 1129 [2008], lv denied 12 NY3d 706[2009]). Moreover, petitioner testified that climbing fences was a frequent activityundertaken in such pursuits (see id.). While he maintained that there was a defectin the fence that caused it to "bend and break out of its stanchion," no evidence of adefect was presented at the hearing (see Matter of O'Shei v Hevesi, 26 AD3d at586). In any event, the bending of the fence under petitioner's weight is an event thatcould be reasonably anticipated even if an underlying defect was not visible (see e.g.Matter of Suppa v DiNapoli, 101 AD3d at 1349; Matter of Melendez v NewYork State Comptroller, 54 AD3d at 1129-1130). Accordingly, we conclude that theincident was an inherent risk of petitioner's employment and that substantial evidencesupports respondent's determination (see Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484[2011]; Matter of Melendez v New York State Comptroller, 54 AD3d at1129-1130).
Peters, P.J., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.