| Matter of Beckley v Nitido |
| 2014 NY Slip Op 08894 [123 AD3d 1330] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Ronald J. Beckley, Petitioner, vThomas Nitido, as Deputy State Comptroller, Respondent. |
Baker, Leshko, Saline & Blosser, LLP, White Plains (Anthony C. Saline ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel),for respondent.
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 of theComptroller which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a police officer, responded to a report of a fight at a bar. After arriving atthe scene, he observed a vehicle coming toward him, with an individual on the hood ofthe vehicle firing a gun into the vehicle's windshield. Petitioner drew his weapon andfired a shot at the individual on the hood of the vehicle as it passed him. The shot did notstrike the individual, whom petitioner later discovered was a fellow police officer.Petitioner thereafter filed an application for accidental disability retirement benefits,claiming that he suffers from posttraumatic stress disorder and high blood pressure as aresult of this incident, making him permanently incapacitated from performing the dutiesof a police officer. The application was initially denied. Following a hearing, the HearingOfficer also denied the application, finding that the incident did not constitute anaccident within the meaning of the Retirement and Social Security Law. The Comptrolleradopted the Hearing Officer's finding and this CPLR article 78 proceeding ensued.
We confirm. "Petitioner bore the burden of proving entitlement to accidentaldisability [*2]retirement benefits and the Comptroller'sdetermination will be upheld if supported by substantial evidence" (Matter of Bleeker v New YorkState Comptroller, 84 AD3d 1683, 1683 [2011], lv denied 17 NY3d 709[2011] [citation omitted]; seeMatter of Fiducia v DiNapoli, 111 AD3d 1018, 1018 [2013]). "To qualify as anaccident, the precipitating event must be a sudden, fortuitous mischance, unexpected, outof the ordinary, and injurious in impact" (Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337[2013] [internal quotation marks and citations omitted]; see Matter of Cavallo vDiNapoli, 117 AD3d 1366, 1367 [2014]). Significantly, the Comptroller'sdetermination "must be confirmed where the injury was sustained during theperformance of ordinary employment duties and without the occurrence of an unexpectedevent" (Matter of Bennett vDiNapoli, 119 AD3d 1310, 1311 [2014]; see Matter of Quartucio vDiNapoli, 110 AD3d at 1337).
Petitioner testified that he had been trained as a police officer to fire his gun whenfaced with a situation, such as the one presented to him here, where he observed anindividual using deadly force against another individual. Inasmuch as the record supportsthe Comptroller's determination that petitioner's alleged injuries arose not from anunexpected event, but from risks inherent in the performance of petitioner's job duties, itwill not be disturbed (see Matter of Berbenich v Regan, 81 AD2d 732, 732[1981], affd 54 NY2d 792 [1981]).
Lahtinen, Garry, Rose and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.