| Matter of DiGiacomo v DiNapoli |
| 2014 NY Slip Op 02122 [115 AD3d 1138] |
| March 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Marc A. DiGiacomo,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, 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, claims that he sustained incapacitating injuries to his neckand lower back when, in May 2009, while driving his work vehicle onto the entranceramp or driveway leading into the rear driveway of the precinct parking lot, he struck apothole located next to a curb. He thereafter applied for, as relevant herein, accidentaldisability retirement benefits. That application was denied and petitioner sought a hearingand a redetermination. Following a hearing, the Hearing Officer denied the application,finding that petitioner did not establish that the incident was an accident within themeaning of Retirement and Social Security Law § 363. Upon review, respondentaccepted the Hearing Officer's findings and conclusions and denied the application,prompting the commencement of 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] determination,if [*2]supported by substantial evidence in the record as awhole, will be upheld" (Matterof Walsh v New York State & Local Retirement Sys., 82 AD3d 1341, 1341[2011] [citations omitted]; seeMatter of Assmann v DiNapoli, 95 AD3d 1487, 1488 [2012]). "Notably, aninjury will not be considered accidental if it results from an expected or foreseeable eventarising during the performance of routine employment duties" (Matter of Rodriquez vDiNapoli, 110 AD3d 1125, 1126 [2013] [internal quotation marks and citationsomitted]; see Matter ofMadaffari v DiNapoli, 104 AD3d 1047, 1047 [2013]).
Petitioner testified that he did not see the pothole prior to the time that he drove intoit, and he had driven into and out of that parking lot "hundreds, if not thousands" oftimes, including earlier that same day, without ever noticing or encountering a pothole inthat location. Significantly, the Hearing Officer noted that, "[p]otholes are a normal,everyday occurrence on roads and highways, requiring the attention of the motorist." Inour view, petitioner did not demonstrate that the subject pothole was not readilyobservable prior to his contact with it or that his injury was caused by anything other thanhis own inattention to a routine driving hazard "undertaken in the performance ofordinary employment duties" (Matter of Grutzner v Murray, 68 AD3d 1231, 1232-1233[2009]; see Matter of Madaffari v DiNapoli, 104 AD3d at 1048). Accordingly,we conclude that respondent's determination is supported by substantial evidence andwill not be disturbed.
McCarthy, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.