| Matter of Pastalove v Kelly |
| 2014 NY Slip Op 05922 [120 AD3d 419] |
| August 21, 2014 |
| Appellate Division, First Department |
[*1]
| In the Matter of Robert Pastalove,Appellant, v Raymond Kelly, as the Police Commissioner of the City of NewYork, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, etal., Respondents. |
Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), forappellant.
Michael A. Cardozo, Corporation Counsel, New York (Paul T. Rephen of counsel),for respondents.
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), enteredJuly 30, 2012, denying the CPLR article 78 petition to annul the determination of theBoard of Trustees of the Police Pension Fund, dated June 8, 2011, which rejectedpetitioner's application for an accidental disability retirement (ADR) pursuant toAdministrative Code of the City of New York § 13-252 in favor of anordinary disability retirement (ODR), and dismissing the proceeding, affirmed, withoutcosts.
Petitioner, a uniformed police officer with the New York City Police Department,was the first emergency responder to a residential fire in the early morning hours of April23, 2008. He injured his right hand and wrist when, as he stepped over two fire hoseslaid down by the firefighters, they were charged with water, causing him to trip and fall.Petitioner applied for ADR benefits about a year and a half later. The Medical BoardPolice Pension Fund Article II (Medical Board) found that petitioner had suffered apermanent disability and recommended that he be granted ADR benefits. The Board ofTrustees of the New York City Police Pension Fund Article II met on several occasionsin 2011 to address the Medical Board's conclusion that petitioner's disability was thedirect result of his accident.
The Board of Trustees is always tasked with making its own determination as tocausation (see Matter ofPicciurro v Board of Trustees of N.Y. City Police Pension Fund, Art. II, 46 AD3d346, 348 [1st Dept 2007]). While it never questioned that petitioner suffered anaccident, the Board of Trustees ultimately deadlocked on the question of causation, thatis to say, whether his injury occurred as the result of a reasonable risk of his work, or ofan out-of-the-ordinary, sudden mischance that would entitle him to ADR benefits. As iscustomary following a tie vote, the Board of Trustees denied petitioner's application forADR, and he was awarded ordinary disability benefits (see Matter of Walsh vScoppetta, 18 NY3d 850 [2011]). Petitioner then brought an article 78proceeding challenging the Board of Trustees's determination as arbitrary and capriciousor an abuse of discretion (see CPLR 7803 [3]). Supreme Court denied the petitionand dismissed the proceeding, and this appeal ensued.
Not every line of duty injury will result in an award of ADR (see Matter ofMcCambridge [*2]v McGuire, 62 NY2d 563,567-568 [1984]). When the denial of ADR benefits to a police officer is the result of a tievote by the Board of Trustees, this Court is required to uphold the denial unless "it can bedetermined as a matter of law on the record that the disability was the natural andproximate result of a service-related accident" (Matter of Meyer v Board of Trusteesof N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145 [1997] [internalquotation marks omitted]). Thus, the issue before us is whether, reviewing the record, itcan be said, as a matter of law, that petitioner's disability was the natural and proximateresult of a service-related accident.
In the context of ADR benefits, the Court of Appeals has defined an accident as a" 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious inimpact,' " while " 'an injury which occurs without an unexpected event asthe result of activity undertaken in the performance of ordinary employment duties,considered in view of the particular employment in question, is not an accidentalinjury' " (Matter ofKenny v DiNapoli, 11 NY3d 873, 874 [2008], quoting Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y.,Art. II, 57 NY2d 1010, 1012 [1982]). It is petitioner's burden to establish that hisinjuries resulted from an accident as defined in the context of ADR (see Matter of Brown v Kelly,100 AD3d 480 [1st Dept 2012]).
Normal risks in most jobs are not unexpected (see Matter of Gray v Kerik, 15 AD3d 275, 275 [1st Dept2005] [the petitioner's knee twisted and "snapped" as he exited his patrol car to directtraffic; stepping out of vehicle to direct traffic does not in itself constitute a "sudden,fortuitous mischance" that is "accidental" under the law (internal quotation marksomitted)]; see also Matter of Ortiz v New York City Employees' Retirement Sys.,173 AD2d 237, 238 [1st Dept 1991], lv denied 78 NY2d 864 [1991] [elevatormechanic attempted to step down from the elevator car which he was repairing, caughthis foot in the elevator door's gate-chain, and fell two to three feet to the floor below;"nature of the occurrence was reasonably within the risk of the work performed"];compare Matter of Finazzo v Safir, 273 AD2d 75, 75 [1st Dept 2000] [after theemployee stepped out of his patrol car and walked toward the station house, he "trippedin a construction hole"; his injury was the result of an accident within the meaning ofsection 13-252 of the Administrative Code]).
While it is true that petitioner was a police officer, not a firefighter, it cannot be saidas a matter of law that his ordinary employment duties did not include responding to afire emergency. As the Board of Trustees had before it some credible evidence of lack ofcausation, it did not err as a matter of law in concluding that petitioner's disability wasnot the result of an accident within the meaning of Administrative Code§ 13-252 (see Matter of Canfora v Board of Trustees of Police PensionFund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 352 [1983]). Finally,contrary to the dissent, we do not regard the charging of fire hoses at the scene of a fireas a sudden, fortuitous, or unexpected event. Concur—Friedman, J.P., Andrias,Richter and Feinman, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: Petitioner was the firstemergency responder to a fire in a multi-level, single room occupancy residentialbuilding fire at 3:24 a.m. on April 23, 2008. He parked his vehicle and ran [*3]into the smoke-filled building, and was evacuating dozensof tenants through narrow, smoked-filled hallways and down stairwells when the firedepartment arrived on the scene.
Petitioner exited the building, encountering a chaotic, crowded rescue scene.Petitioner was instructed by fire department personnel to move his vehicle from the frontof the building. As petitioner made his way toward the vehicle, a fire hose wasunexpectedly "charged," or filled with water, causing it to jump off the ground, andpetitioner, who was attempting to step over the hose, to trip and fall. It is undisputed thatpetitioner suffered a wrist fracture so severe that he was found to be permanentlydisabled for full police work.
The majority now affirms the decision of the motion court denying petitioner anADR pension, reasoning that his injury was not the result of a service-related "accident."I cannot countenance such constrictive reasoning, nor its result.
The contemporaneous evidence establishes that petitioner tripped and fell over a firehose that unexpectedly "charged" while he attempted to comply with the firedepartment's directive to move his vehicle (see Matter of Meyer v Board of Trusteesof N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]). Thisevent constitutes "a sudden, fortuitous mischance, unexpected, out of the ordinary, andinjurious in impact" (Matter of Starnella v Bratton, 92 NY2d 836, 838 [1998][internal quotation marks omitted]).
A trip and fall occasioned by a fire hose, in the middle of a chaotic rescue scene,cannot be characterized as a misstep in the ordinary course of employment, as themajority finds. Petitioner did not fall down a flight of stairs, like the petitioner inStarnella, but encountered an unexpected and non-stationary object in the midstof a chaotic, frenetic scene, making the case more similar to Matter of Flannelly vBoard of Trustees of N.Y. City Police Pension Fund (278 AD2d 113 [1st Dept 2000][officer's trip and fall over a tangle of television and VCR wires in police locker room,while performing routine security inspection, constituted a service-related accident as amatter of law]).
The fact that a police officer may have familiarity with fire scenes generally, or hasresponded to fire scenes in the past, is not the equivalent of familiarity or knowledge of aparticular fire scene sufficient to render the placement or movement of objects"expected"; each fire scene is different and none are stationary or controlled. Themajority's decision has the effect of penalizing an officer who, with no thought to hisown health or safety, evacuated residents from a burning building, and will dissuade firstresponders in the future from taking similar heroic action. [Prior Case History: 2012NY Slip Op 32008(U).]