| Matter of Emerson v DiNapoli |
| 2014 NY Slip Op 02126 [115 AD3d 1145] |
| March 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Patricia C. Emerson,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Egan Jr., 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 Comptroller which denied petitioner's application for accidental disabilityretirement benefits.
Petitioner, a senior court officer, sustained injuries to her right hand, arm andshoulder in the process of restraining a criminal defendant who was being remanded for aprobation violation. Following the denial of her application for accidental disabilityretirement benefits, petitioner requested a hearing and redetermination. A HearingOfficer subsequently determined that petitioner had not sustained her burden of provingher entitlement to benefits, and respondent Comptroller upheld that decision. Petitionerthen commenced this CPLR article 78 proceeding.
We confirm. An accident is defined as "a sudden, fortuitous, out of the ordinary andunexpected event that does not result from an activity undertaken in the performance ofregular or routine employment duties" (Matter of Kilbride v New York State Comptroller, 95 AD3d1496, 1496 [2012], lv denied 19 NY3d 813 [2012] [internal quotation marksand citations [*2]omitted]; accord Matter of Rykala v NewYork State Comptroller, 92 AD3d 1077, 1077 [2012]). Here, petitioneracknowledged that her job duties included the physical restraint of unruly individuals,and it is undisputed that her injuries were sustained in carrying out such duties, aselucidated in the hearing testimony, the application for benefits and the injury report.Accordingly, despite the existence of evidence that could support a finding that petitionerwas assaulted, substantial evidence supports the Comptroller's determination thatpetitioner's injuries occurred in the routine performance of her duties (see Matter of Quartucio vDiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of Jarosz v DiNapoli, 95 AD3d 1500, 1501 [2012];Matter of Kilbride v New York State Comptroller, 95 AD3d at 1497; Matter of Wise v New York StateComptroller, 38 AD3d 1032, 1033-1034 [2007], lv denied 9 NY3d 811[2007]).
Peters, P.J., Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.