| Matter of Scofield v DiNapoli |
| 2015 NY Slip Op 01221 [125 AD3d 1086] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Glenn R. Scofield jr.,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Bartlett, McDonough & Monahan, LLP, White Plains (Patricia D'Alvia ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 benefits in2010, alleging that he was permanently incapacitated as a result of incidents thatoccurred on May 23, 1995 and January 23, 2004. Following a hearing, the HearingOfficer denied petitioner's application, finding that neither incident constituted anaccident within the meaning of the Retirement and Social Security Law and, further, thatpetitioner failed to give the required notice for the 2004 incident. Respondentsubsequently adopted the Hearing Officer's findings and this CPLR article 78 proceedingensued.
We confirm. Petitioner bore the burden of proving entitlement to accidental disabilityretirement benefits and respondent's determination will be upheld if supported bysubstantial evidence (see Matterof Bennett v DiNapoli, 119 AD3d 1310, 1310 [2014]; Matter of DiGiacomo vDiNapoli, 115 AD3d 1138, 1139 [2014]). In order to qualify as an accidentwithin the meaning of the Retirement and Social Security Law, "the precipitating eventmust be a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious inimpact" (Matter of Hunce v[*2]DiNapoli, 106 AD3d 1427, 1428 [2013][internal quotation marks and citations omitted]; see Matter of Bennett vDiNapoli, 119 AD3d at 1310). "[A]n incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where the injury resultsfrom an expected or foreseeable event arising in the performance of routine employmentduties" (Matter of O'Brien vHevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; accord Matter of Canner v NewYork State Comptroller, 97 AD3d 1091, 1092 [2012], lv denied 20NY3d 851 [2012]).
With respect to the May 23, 1995 incident, petitioner testified that he was in a patrolcar pursuing a suspect during daylight hours when he observed the suspect's vehiclecrash over a telephone pole that had been laid horizontally to act as a barrier for aparking area. According to petitioner, he was unable to stop in time and his patrol carstruck the pole and came to rest on top of the pole. When he exited the patrol car to chasethe suspect on foot, he stepped on the pole and his knee buckled, dislocating his kneecap.In our view, even if petitioner did not see where the pole was positioned under the patrolcar, the risk of stepping on it as he exited the vehicle could have been reasonablyanticipated (see Matter of Bennett v DiNapoli, 119 AD3d at 1310; Matter of Bleeker v New YorkState Comptroller, 84 AD3d 1683, 1684 [2011], lv denied 17 NY3d 709[2011]). Inasmuch as pursuing a fleeing suspect is an ordinary duty of a police officer(see Matter of Quartucio vDiNapoli, 110 AD3d 1336, 1337 [2013]), respondent's determination that theMay 23, 1995 incident does not qualify as an accident within the meaning of theRetirement and Social Security Law is supported by substantial evidence.
We are similarly unpersuaded that the January 23, 2004 incident qualified as anaccident. Petitioner testified that he was investigating a fire at approximately 4:00 a.m.and, while he was examining the exterior of a structure damaged by the fire, he slippedon ice that had accumulated on the sidewalk and injured his knee.[FN*] In his report of theincident, petitioner stated that the temperature that night was "in the single digits" and hetestified that he observed snow on the ground, but nothing on the sidewalk. According topetitioner, the firefighters were still suppressing the fire with water at the time he slippedand, although he was aware that there was water present throughout the area, he was notpaying attention as to whether there was water on the sidewalk. Under thesecircumstances, substantial evidence supports respondent's determination that petitioner'sfall occurred while he was performing routine duties of his employment and that thecondition of the sidewalk in subfreezing conditions could have reasonably beenanticipated (see Matter of Bleeker v New York State Comptroller, 84 AD3d at1684; Matter of Carducci vDiNapoli, 77 AD3d 1052, 1053 [2010]). In light of our conclusion, we need notaddress respondent's additional finding that petitioner failed to provide timely notice ofthis incident.
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Petitioner testified thathe is a certified fire investigator and was working in that role for the police departmenton the day in question.