| Matter of Greco v DiNapoli |
| 2014 NY Slip Op 08941 [123 AD3d 1366] |
| December 24, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Rocco Greco,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Michael J. Catallo ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
McCarthy, 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 worked as a detective for the Village of Larchmont Police Department inWestchester County. On March 30, 2010, he and three other officers went to a residenceto arrest a burglary suspect. After being informed that the suspect was downstairs,officers proceeded to walk down the wooden staircase inside the residence that led to thebasement apartment. Two of the officers descended the stairs before petitioner withoutincident. As petitioner began to descend the stairs, he lost his footing on the top step andfell all the way down to the landing, injuring himself. After the fall, he noticed a clearcoating on the stairs that he believed was polyurethane. Petitioner subsequently filed anapplication for accidental disability retirement benefits. His application was initiallydenied, but he was later granted benefits by a Hearing Officer following a hearing.Respondent, however, subsequently concluded that petitioner was not entitled to receivebenefits because the March 30, 2010 incident did not constitute an accident within themeaning of Retirement and Social Security Law § 363. Petitionercommenced this CPLR article 78 proceeding challenging thisdetermination.
[*2] We confirm. Initially, asthe party seeking accidental disability retirement benefits, the burden was on petitioner toprove entitlement, and respondent's determination in this regard will be upheld ifsupported by substantial evidence (see Matter of Fiducia v DiNapoli, 111 AD3d 1018, 1018[2013]; Matter of Tierney vNew York State Comptroller, 90 AD3d 1215, 1215 [2011]). "For purposes ofaccidental disability retirement benefits, the underlying accident must be 'a sudden,fortuitous, out of the ordinary and unexpected event that does not result from an activityundertaken in the performance of regular or routine employment duties' " (Matter of Welsh v New York StateComptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d 706[2010], quoting Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000]; see Matter of Sorrentino vDiNapoli, 74 AD3d 1694, 1695 [2010]). A slip and fall occasioned by ahazardous condition that could have been reasonably anticipated has been found not tobe accidental (see Matter ofRandolph v DiNapoli, 85 AD3d 1288, 1289 [2011]).
Here, petitioner was in the process of executing an arrest warrant, part of his routinejob duties, at the time he started to descend the stairs. According to him, the stairway waslit and it was not obstructed in any manner. By his own admission, he was scanning thearea looking for the suspect and not looking at the stairs themselves at the time he madehis descent. He stated that he lost his footing and fell, but afterward noticed a clear staircoating that was slippery to the touch. He believed that the coating waspolyurethane—a product commonly used on wood surfaces—and that thiscaused him to fall. Under the circumstances, and given that petitioner could havereasonably anticipated the coating on the stairs had he looked prior to making hisdescent, substantial evidence supports respondent's determination that the incident didnot constitute an accident within the meaning of Retirement and Social Security Law§ 363 (see e.g.Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 894 [2011];Matter of Randolph v DiNapoli, 85 AD3d at 1289; Matter of Collins v DiNapoli,57 AD3d 1148, 1149 [2008]; compare Matter of Balduzzi v McCall, 220AD2d 796, 797 [1995]). Consequently, we find no reason to disturb it.
Lahtinen, J.P., Egan Jr. and Devine, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.