| Matter of Del Salto v DiNapoli |
| 2014 NY Slip Op 02128 [115 AD3d 1147] |
| March 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Vinicio L. Del Salto,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Rose, 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.
Petitioner, a police officer, responded to a report of a woman attempting to cash afraudulent check at a bank. Upon observing an individual matching the description of thesuspect walking down the street away from the bank, petitioner approached theindividual from behind. After she refused to stop, petitioner grabbed her arm with hisright hand. She then quickly jerked away from petitioner and he felt a sharp pain in hisneck and shoulder areas. A struggle ensued and petitioner ultimately placed theindividual under arrest. Petitioner thereafter applied for accidental disability retirementbenefits, citing injuries to his neck, left and right shoulders, right elbow and right wrist.The application was initially disapproved and petitioner requested a redetermination.Following a hearing, the Hearing Officer concluded that the incident did not constitutean accident within the meaning of the Retirement and Social Security Law and deniedpetitioner's application. Respondent upheld the Hearing Officer's decision, [*2]prompting this CPLR article 78 proceeding.[FN*]
We confirm. Petitioner bears the burden of proving that his injuries were accidental,"in that they were caused by a sudden and extraordinary event that is unrelated to theordinary risks of employment" (Matter of Held v DiNapoli, 82 AD3d 1444, 1445 [2011][internal quotation marks and citations omitted]; accord Matter of Jarosz v DiNapoli, 95 AD3d 1500,1500-1501 [2012]). An incident does not qualify as an accident within the meaning ofthe Retirement and Social Security Law "where the injury results from an expected orforeseeable event arising from the performance of routine employment duties" (Matter of O'Brien v Hevesi, 12AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; accord Matter of Lundquist vDiNapoli, 106 AD3d 1439, 1439 [2013]).
Petitioner contends that he is entitled to accidental disability retirement benefitsbecause he was injured as the result of an assault, and not as the result of theperformance of his duties as a police officer. The record reflects, however, that petitionerwas injured while attempting to detain an individual suspected of committing a crime.Inasmuch as petitioner's injury "was caused by physical contact of the sort that is inherentin the routine performance of his duties" (Matter of Kilbride v New York State Comptroller, 95 AD3d1496, 1497 [2012], lv denied 19 NY3d 813 [2012]), substantial evidencesupports respondent's determination and it will not be disturbed (see Matter of Quartucio vDiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of Jarosz v DiNapoli,95 AD3d at 1501).
Peters, P.J., Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner's applicationfor performance of duty disability retirement benefits was granted.