| Matter of Cavallo v DiNapoli |
| 2014 NY Slip Op 03901 [117 AD3d 1366] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Robert W. Cavallo,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Patricia D'Alvia ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 applied for accidental disability retirement benefits claiming, as is relevanthere, that work-related incidents in 2007 and 2009 had rendered him permanentlyincapacitated to perform his work as an assistant chief for the City of Yonkers FireDepartment. His application was denied and, upon his request for a hearing andredetermination, the Hearing Officer determined that neither incident constituted anaccident within the meaning of the Retirement and Social Security Law. Respondentadopted the Hearing Officer's findings and conclusions, prompting petitioner tocommence this CPLR article 78 proceeding.
We confirm. An accident is "a 'sudden, fortuitous mischance, unexpected, out of theordinary, and injurious in impact' and . . . 'an injury which occurs without anunexpected event as the result of activity undertaken in the performance of ordinaryemployment duties, considered in view of the particular employment in question, is notan accidental injury' " (Matter of Kenny v [*2]DiNapoli, 11 NY3d 873, 874 [2008], quotingMatter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. ofCity of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). Petitioner injured his left knee in2007 when he slipped on a wet steel plate that had covered part of a fire station floor forseveral years. He testified that the plate might have been wet due to a fire truck returningto the station and, moreover, that water often pooled in that area when it rained.Petitioner reinjured his left knee in 2009 in the wake of a structure fire when he fell in awet area while attempting to avoid a fire hose, conditions that were admittedlycommonplace at fire scenes. Inasmuch as "the condition[s] that caused the [falls] couldhave been 'reasonably anticipated' " by petitioner, substantial evidence supportsthe determination of respondent that neither incident constituted an accident entitling himto accidental disability retirement benefits (Matter of Sammon v DiNapoli, 97 AD3d 952, 953 [2012],quoting Matter of Murphy vNew York State Comptroller, 92 AD3d 1022, 1023 [2012]; see Matter ofKenny v DiNapoli, 11 NY3d at 874-875; Matter of Carrella v DiNapoli, 98 AD3d 1220, 1221[2012]).
Lahtinen, J.P., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.