| Matter of Yurko v DiNapoli |
| 2014 NY Slip Op 07728 [122 AD3d 1047] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Kimberly A. Yurko,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), forrespondent.
Stein, 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 police officer, was injured on a morning in May 2007 when, uponarriving at a scene to assist with a robbery suspect who had been apprehended, shestepped out of her police car into a pothole and twisted her left ankle. Petitionerthereafter applied for accidental disability retirement benefits, which were denied on theground that the incident was not an accident within the meaning of Retirement and SocialSecurity Law § 363. Following a hearing and redetermination, a HearingOfficer denied the application, as relevant here, on the same ground, and respondentupheld that determination. Petitioner then commenced this CPLR article 78proceeding.
We confirm. Petitioner bore the burden of demonstrating her entitlement toaccidental disability retirement benefits and respondent's determination must be upheld ifsupported by substantial evidence (see Matter of Bennett v DiNapoli, 119 AD3d 1310, 1310[2014]; Matter of [*2]DiGiacomo v DiNapoli, 115 AD3d 1138, 1139[2014]). Entitlement to benefits depends upon a showing that the precipitating incidentwas "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious inimpact" (Matter of Kenny vDiNapoli, 11 NY3d 873, 874 [2008] [internal quotation marks and citationomitted]; accord Matter ofCavallo v DiNapoli, 117 AD3d 1366, 1367 [2014]). Credibility issues,including the veracity of sworn testimony, are the province of respondent to resolve(see Matter of Bennett v DiNapoli, 119 AD3d at 1310-1311; Matter of Messina v New YorkState & Local Employees' Retirement Sys., 102 AD3d 1068, 1069 [2013],lv denied 21 NY3d 855 [2013]).
Here, petitioner testified that the pothole into which she stepped was approximatelytwo feet by two feet and the accident reports contained that same description.Respondent found that, while petitioner testified that she glanced at the road beforealighting from her vehicle and did not see the pothole, such testimony was not crediblegiven the size of the hazard. Because the pothole was a condition that was readilyobservable and, therefore, could have been reasonably anticipated, respondent'sdetermination is supported by substantial evidence (see Matter of DiGiacomo vDiNapoli, 115 AD3d at 1139; Matter of Madaffari v DiNapoli, 104 AD3d 1047,1047-1048 [2013]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.