| Matter of Fiducia v DiNapoli |
| 2013 NY Slip Op 07245 [111 AD3d 1018] |
| November 7, 2013 |
| Appellate Division, Third Department |
| In the Matter of Leonard Fiducia,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
McCarthy, 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 officer, was searching an abandoned building when he slippedand fell while descending a stairway. He thereafter applied for accidental disabilityretirement benefits, alleging debilitating injuries to his lower back, neck and left leg asthe result of his fall. The application was initially disapproved and petitioner requested aredetermination. Following a hearing, the Hearing Officer concluded that the incident didnot constitute an accident within the meaning of the Retirement and Social Security Lawand denied petitioner's application. Respondent upheld the Hearing Officer's decision,prompting this CPLR article 78 proceeding.
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 Roth v DiNapoli, 105 AD3d 1183, 1184[2013]). An incident does not qualify as an accident "where the injury results [*2]from an expected or foreseeable event arising during theperformance of routine employment duties" (Matter of O'Brien v Hevesi, 12 AD3d 895, 896 [2004],lv dismissed 5 NY3d 749 [2005]; accord Matter of Lundquist v DiNapoli, 106 AD3d 1439,1439 [2013]). "Rather, [t]he precipitating event must emanate from a risk that is not aninherent element of the petitioner's regular employment duties" (Matter of Canner v New YorkState Comptroller, 97 AD3d 1091, 1092 [2012], lv denied 20 NY3d 851[2012] [internal quotation marks and citations omitted]; see Matter of Murray v New YorkState Comptroller, 84 AD3d 1681, 1682 [2011]).
Petitioner testified that he was searching an abandoned building on the day of hisinjury. According to petitioner, his regular job duties included such searches and he hadconducted a similar search of that building approximately one month prior and wasaware that the building had formerly been occupied by drug dealers who owned pit bulls.Before he began descending a well-lit stairway into the basement, petitioner observedthat the building in general was a mess and that the stairs appeared soiled, although hetestified that he did not see any obstacles on the stairs. After descending a few steps,petitioner slipped on dog feces and fell down the stairs. Inasmuch as the risk of fallingdue to unseen obstacles while searching an abandoned building is inherent in theperformance of petitioner's ordinary employment duties (see Matter of Sikoryak vDiNapoli, 104 AD3d 1042, 1043 [2013]; see also Matter of Canner v NewYork State Comptroller, 97 AD3d at 1092; Matter of Murray v New York StateComptroller, 84 AD3d at 1682), respondent's determination that the subject incidentwas not an accident within the meaning of the Retirement and Social Security Law issupported by substantial evidence and will not be disturbed.
Stein, J.P., Spain and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.