| Matter of Bennett v DiNapoli |
| 2014 NY Slip Op 05594 [119 AD3d 1310] |
| July 31, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Dennis C. Bennett,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Raymond G. Lavallee, Esq., PC, Farmingdale (Rosanna A. Franzi of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Peters, P.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 which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a member of the crime prevention unit of the Nassau County PoliceDepartment, was conducting a late night narcotics investigation in April 2010 when asuspect vehicle fled from the location at issue. During the high-speed chase that ensued,the suspect vehicle traversed a road divider, causing the rear of the vehicle to raise upand slam onto the ground, and the vehicle then crashed into a fence and came to rest inthe roadway. The suspect then fled on foot and, after petitioner stopped his vehicle, healit and gave chase. Petitioner testified that he caught the suspect and a scuffle ensued,during which he felt his feet slide out from beneath him and he went down to the ground.When emergency vehicles arrived and illuminated the scene, petitioner observed that theroadway was covered with a fresh coat of shiny liquid, which contained footprintsleading from his police vehicle to the site of the altercation. As the result of his injuries,petitioner filed an application for accidental disability retirement benefits, which wasultimately denied by respondent based upon a determination that [*2]petitioner had offered no evidence that he stepped into theliquid or that it caused him to fall and, therefore, the April 2010 incident did notconstitute an accident within the purview of Retirement and Social Security Law§ 363. Petitioner then commenced this CPLR article 78 proceeding and wenow confirm.
Petitioner bears the burden of proving entitlement to accidental disability retirementbenefits and a determination by respondent will be upheld when supported by substantialevidence (see Matter of Fiduciav DiNapoli, 111 AD3d 1018, 1018 [2013]; Matter of Carpenter v DiNapoli, 104 AD3d 1037, 1038[2013]). Entitlement to such benefits depends upon a demonstration that the underlyingincident was "a sudden, fortuitous mischance, unexpected, out of the ordinary, andinjurious in impact" (Matter ofQuartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal quotation marksand citations omitted]; seeMatter of Rodriquez v DiNapoli, 110 AD3d 1125, 1126 [2013]).
Initially, while respondent is entrusted with the authority to resolve credibility issues(see Matter of Messina v NewYork State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069[2013], lv denied 21 NY3d 855 [2013]; Matter of Cooke v DiNapoli, 96 AD3d 1340, 1341 [2012]),we disagree with the determination here that petitioner offered no evidence that hestepped in the liquid. While there was evidence in the record that might suggest that theliquid was not the cause of petitioner's fall, he did testify that the footprints leading fromhis car to the incident site made him realize that he had run through the liquid and helater stated unequivocally that he slipped on the liquid.
Nevertheless, the determination must be confirmed where the injury was sustainedduring the performance of ordinary employment duties and without the occurrence of anunexpected event (see Matter ofPufahl v Murray, 111 AD3d 1050, 1051 [2013]; Matter of Hunce v DiNapoli,106 AD3d 1427, 1428 [2013]). Both petitioner and his partner testified that chasingsuspects was within their job duties and that, following a vehicle accident, there could besubstances in the roadway. Accordingly, the hazard was one that petitioner reasonablycould have anticipated, even if he did not see it until after his fall. We therefore find nobasis upon which to disturb respondent's determination that petitioner did not establishhis entitlement to accidental disability retirement benefits (see Matter of Quartucio vDiNapoli, 110 AD3d at 1337; Matter of Bleeker v New York State Comptroller, 84 AD3d1683, 1683-1684 [2011], lv denied 17 NY3d 709 [2011]).
Stein, Rose, Egan Jr. and Clark, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.