| Matter of Dicioccio v DiNapoli |
| 2015 NY Slip Op 00674 [124 AD3d 1170] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Richard D. Dicioccio,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 (Paul Groenwegen of counsel), forrespondent.
Lynch, 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, applied for accidental disability retirement benefitsalleging a permanent disability as a result of injuries sustained to his left shoulder fromaccidents occurring on December 3, 2007 and June 11, 2010. Following a hearing, theHearing Officer denied the application, finding that the incidents did not constituteaccidents within the meaning of Retirement and Social Security Law § 363.Respondent adopted the decision of the Hearing Officer, prompting petitioner tocommence this CPLR article 78 proceeding.
In seeking accidental disability retirement benefits, the petitioner bears the burden ofestablishing that the injuries resulted from an accident, and respondent's determinationwill not be disturbed if it is supported by substantial evidence (see Matter of Shea v DiNapoli,115 AD3d 1023, 1024 [2014]; Matter of O'Neill v DiNapoli, 83 AD3d 1280, 1280[2011]). "For purposes of accidental disability retirement benefits, the underlyingincident must be 'a sudden, fortuitous, out of the ordinary and unexpected event that doesnot result from an activity undertaken in the [*2]performance of regular or routine employmentduties' " (Matter ofMurphy v New York State Comptroller, 92 AD3d 1022, 1022 [2012] [internalquotation marks and citations omitted]). "With regard to slip and fall incidents, thequestion of whether an accident occurred turns on whether the condition that caused theslip could have been 'reasonably anticipated' " (Matter of Sammon v DiNapoli,97 AD3d 952, 953 [2012], quoting Matter of Murphy v New York StateComptroller, 92 AD3d at 1023).
Here, with regard to the December 3, 2007 incident, petitioner testified that heslipped on unseen ice in an enclosed, dark alley when responding to a burglar alarmaround 9:00 a.m. He acknowledged that the sky was grey, the temperature was close tofreezing and some snow was on the ground. Under these circumstances, we find thatpetitioner could have reasonably anticipated the icy conditions such that this incident didnot constitute an accident (see Matter of Shea v DiNapoli, 115 AD3d at1024-1025; Matter of Kempkesv DiNapoli, 81 AD3d 1071, 1072 [2011]).
Nor are we persuaded that the June 11, 2010 incident constitutes an accident.Petitioner testified that his left arm was injured during a mandatory self-defense trainingsession provided by the employer when, according to petitioner, a fellow officer became"a little overzealous" and used more strength than usual when practicing a takedownprocedure on him. The record supports a finding that the manner in which petitioner wasinjured "was the result of a training program constituting an ordinary part of petitioner'sjob duties and the normal risks arising therefrom" (Matter of Felix v New York State Comptroller, 28 AD3d993, 994 [2006]; see Matterof Hulse v DiNapoli, 70 AD3d 1235, 1236 [2010]). Inasmuch as substantialevidence supports the determination that petitioner's injuries were not the result of anaccident, it will not be disturbed (see Matter of Shea v DiNapoli, 115 AD3d at1024; Matter of Quartucio vDiNapoli, 110 AD3d 1336, 1336 [2013]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.