| Matter of Lanzetta v DiNapoli |
| 2015 NY Slip Op 05725 [130 AD3d 1109] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Joseph Lanzetta,Petitioner, v Thomas P. DiNapoli, Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Patricia D'Alvia ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Clark, 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 assisting an emergency medical technician in lifting abackboard holding a motor vehicle accident victim when he injured his shoulder. Hisapplication for accidental disability retirement benefits was initially disapproved, and herequested a hearing and redetermination. Following the hearing, the Hearing Officerdetermined that the incident constituted an accident within the meaning of the Retirementand Social Security Law. Upon review, however, respondent reversed that determinationand denied petitioner's application.[FN*] This CPLR article 78 proceedingensued.
We confirm. Initially, contrary to petitioner's contention, respondent was not boundby the Hearing Officer's determination (see Retirement and Social Security Law§ 74 [b]; Matter of[*2]Wilson v DiNapoli, 52 AD3d 931, 933[2008]). Petitioner has the burden of proving entitlement to accidental disabilityretirement benefits, and respondent's determination will be upheld if supported bysubstantial evidence (see Matterof Dicioccio v DiNapoli, 124 AD3d 1170, 1171 [2015]; Matter of Greco v DiNapoli,123 AD3d 1366, 1367 [2014]). Notably, "an incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where the injury resultsfrom an expected or foreseeable event arising during the performance of routineemployment duties" (Matter ofO'Brien v Hevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749[2005]; see Matter of Rodriquezv DiNapoli, 110 AD3d 1125, 1126 [2013]).
Here, petitioner testified that assisting emergency medical technicians by helping tolift individuals on backboards was a routine employment duty. As to the incident inquestion, petitioner testified that he injured his shoulder when the victim began to roll toone side of the backboard and he had to compensate for this by raising that side of thebackboard. Although petitioner further testified that the backboard had straps to be usedto immobilize an injured person and that the victim was strapped to the backboard, hecould not recall how many straps the backboard had or if all the straps had been used onthe victim. Under these circumstances, substantial evidence supports respondent'sdetermination that the victim's movement while being lifted could have been reasonablyanticipated and, therefore, the incident did not constitute an accident within the meaningof the Retirement and Social Security Law (see Matter of Stone v New York State Comptroller, 90 AD3d1377, 1377-1378 [2011], lv denied 18 NY3d 810 [2012]; Matter of Felix v New York StateComptroller, 28 AD3d 993, 994 [2006]).
Garry, J.P., Rose and Devine, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Petitioner's applicationfor performance of duty disability retirement benefits was granted.