| Matter of Roberts v DiNapoli |
| 2014 NY Slip Op 03003 [117 AD3d 1166] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Anthony Roberts,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Law Office of Joseph A. Romano, Yonkers (Benai Lifshitz of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel),for respondent.
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 court officer, was injured while he and several other officers attemptedto subdue a combative individual outside a courtroom. His application for accidentaldisability retirement benefits was denied, and he requested a hearing and redetermination.The Hearing Officer found that petitioner had failed to show that the incident constitutedan accident within the meaning of the Retirement and Social Security Law. Respondentadopted the Hearing Officer's findings, and this CPLR article 78 proceeding ensued.
Substantial evidence supports respondent's determination and, accordingly, weconfirm. In order to qualify for accidental disability retirement benefits, petitioner wasobliged to show that his injuries resulted from an accident, i.e., an event that is "asudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"(Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. ofCity of N.Y., Art. II, 57 NY2d 1010, 1012 [1982] [internal quotation marks andcitation omitted]; accord Matter of Quartucio v DiNapoli, [*2]110 AD3d 1336, 1337 [2013]). To constitute an accident,therefore, the event must arise from risks that are not inherent to petitioner's regularemployment duties (see Matterof Kenny v DiNapoli, 11 NY3d 873, 874 [2008]; Matter of Fiducia v DiNapoli,111 AD3d 1018, 1018 [2013]). Petitioner's regular job duties included "physicallyrestraining unruly individuals" and, contrary to his contention, the fact that other officerspiled on to subdue the individual as he struggled with petitioner on the floor did notrender the incident an accident (Matter of Wise v New York State Comptroller, 38 AD3d1032, 1034 [2007], lv denied 9 NY3d 811 [2007]; see Matter of Henry vDiNapoli, 82 AD3d 1446, 1447 [2011]). Moreover, while it could be inferredthat petitioner was assaulted when struck by the individual as he flailed about, "this doesnot negate the substantial evidence supporting the finding that petitioner's injury wascaused by physical contact of the sort that is inherent in the routine performance of hisduties" (Matter of Kilbride vNew York State Comptroller, 95 AD3d 1496, 1497 [2012], lv denied 19NY3d 813 [2012]; see Matter of Wise v New York State Comptroller, 38 AD3dat 1034).
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.