| Matter of Fulton v New York State Comptroller |
| 2014 NY Slip Op 07546 [122 AD3d 983] |
| November 6, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Raymond J. Fulton, Petitioner, v NewYork State Comptroller et al., Respondents. |
Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Lahtinen, 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 Comptroller which denied petitioner's application for accidental disabilityretirement benefits.
Petitioner, a police officer, was on patrol on July 21, 2008 when he was called to alocation where two men were fighting in the street. When he arrived at the scene, oneman was fleeing and the other was standing in the middle of the street. As petitioner gotout of his car, the man in the street seemed incoherent, started to approach him andindicated that he had to talk to petitioner. Petitioner directed the man to step off the sideof the road to get him out of the path of fast moving vehicles, a situation that petitionerdescribed as dangerous. During the process of attempting to get the man to a safelocation, the man proceeded to lunge at petitioner and a physical altercation ensuedresulting in injuries to petitioner's left shoulder and neck. Petitioner filed an applicationfor accidental disability retirement benefits claiming that he was assaulted (see Matterof Stefanelli, Reg. No. 3344419-1, H.C. No. 01-0237 [Mar. 11, 2002]). Hisapplication was denied. Following a hearing, a Hearing Officer concluded that the denialof benefits was proper because the incident did not constitute an accident within themeaning of the Retirement and Social Security Law. Respondent Comptroller upheld thisdetermination and [*2]petitioner commenced this CPLRarticle 78 proceeding challenging it.
The primary issue before us is whether the July 21, 2008 incident was an accidentwithin the meaning of the Retirement and Social Security Law. Petitioner bears theburden of demonstrating that his injuries were the result of an accident, "meaning thatthey were caused by a sudden and extraordinary event that is unrelated to the ordinaryrisks of employment" (Matter ofJarosz v DiNapoli, 95 AD3d 1500, 1500-1501 [2012] [internal quotation marksand citation omitted]; see Matterof Del Salto v DiNapoli, 115 AD3d 1147, 1148 [2014]). Significantly, "theevent must arise from risks that are not inherent to petitioner's regular employmentduties" (Matter of Roberts vDiNapoli, 117 AD3d 1166, 1166 [2014]; see Matter of Wise v New York State Comptroller, 38 AD3d1032, 1033-1034 [2007], lv denied 9 NY3d 811 [2007]). Here, petitioner'sregular duties as a police officer included responding to a call that two men wereengaged in a street fight and attempting to remove one of the men, who was "a littleincoherent with alcohol," from the roadway where his safety was threatened. The riskstaken by petitioner in performing his duty and being drawn into a physical confrontationwith this intoxicated person were an inherent part of his duties. Consequently, we findthat substantial evidence supports the Comptroller's determination that the incident didnot qualify as an accident entitling petitioner to receive accidental disability retirementbenefits (see Matter of Roberts v DiNapoli, 117 AD3d at 1166-1167; Matterof Del Salto v DiNapoli, 115 AD3d at 1148-1149; Matter of Jarosz vDiNapoli, 95 AD3d at 1501). Although it could be inferred from the evidence thatpetitioner was assaulted during the physical confrontation, this does not negate theComptroller's finding that he was injured as a result of physical contact inherent in hisroutine job duties (see Matter ofRodriquez v DiNapoli, 110 AD3d 1125, 1127 [2013]; Matter of Welsh v New York StateComptroller, 67 AD3d 1167, 1169 [2009], lv denied 14 NY3d 706[2010]; Matter of Wise v New York State Comptroller, 38 AD3d at 1034). Wehave considered petitioner's remaining contentions and find them to be unavailing.
Peters, P.J., Stein, Garry and Devine, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.