| Matter of Begley v DiNapoli |
| 2015 NY Slip Op 07323 [132 AD3d 1050] |
| October 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of James C. Begley,Petitioner, v Thomas P. DiNapoli, as New York State Comptroller, et al.,Respondents. |
Kevin P. Sheerin, Mineola, for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Garry, 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 Comptroller denying petitioner's application for enhanced disabilityretirement benefits.
Petitioner worked as an ordinance enforcement officer with the Department of PublicSafety for the Town of Huntington in Suffolk County. On the morning of February 2,2011, after arriving at the parking lot at work, he exited his vehicle and slipped on icecausing him to sustain injuries to his legs, knees and back. As a result of this incident,petitioner applied for disability retirement benefits under Retirement and Social
Security Law article 15. As part of his application, he sought enhanced benefits onthe basis that the incident constituted an accident within the meaning of Retirement andSocial Security Law § [*2]605.[FN1] His application forenhanced benefits was denied and he requested a hearing.[FN2] Petitioner elected to proceed pro se atthe hearing and, at its conclusion, the Hearing Officer upheld the denial. Thereafter,respondent Comptroller issued a determination agreeing with the result reached by theHearing Officer and finding that petitioner had "failed to meet his burden of proof thathis injury resulted from an accident sustained in service." This CPLR article 78proceeding ensued.
We confirm. As defined for purposes of the Retirement and Social Security Law, anunexpected and unfortunate incident does not constitute an accident, so as to support anaward of benefits, " 'where the injury results from an expected or foreseeableevent arising during the performance of routine employment duties' " (Matter of Lundquist vDiNapoli, 106 AD3d 1439, 1439 [2013], quoting Matter of O'Brien v Hevesi, 12AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; see Matter of Scofield vDiNapoli, 125 AD3d 1086, 1086 [2015]). Significantly, the burden is on theparty seeking benefits to establish that the incident causing his or her injury was anaccident (see Matter of Lundquist v DiNapoli, 106 AD3d at 1439; Matter of Smith v New York State& Local Retirement Sys., 103 AD3d 966, 966-967 [2013]).
Here, petitioner testified that the night before the incident there was an ice storm, andhe left for work early the following morning to allow him time to navigate the icy roadconditions. He stated that he spoke to his supervisor while en route and arrived in theparking lot about 10 minutes prior to his regularly scheduled shift. As he exited hisvehicle, he took a few steps and then slipped and fell in the parking lot. While he was onthe ground, he saw that he was lying on ice, and water was running down the middle.Based upon petitioner's testimony describing the occurrence and his awareness of thehazardous conditions created by the ice storm, he should have reasonably anticipated thatthe parking lot would be slippery when he exited his vehicle. Accordingly, as theprecipitating event was entirely foreseeable, substantial evidence supports theComptroller's finding that the incident did not constitute an accident within the meaningof the Retirement and Social Security Law and, thus, that petitioner was not entitled toenhanced benefits (see e.g.Matter of Dicioccio v DiNapoli, 124 AD3d 1170, 1171 [2015]; Matter ofLundquist v DiNapoli, 106 AD3d at 1439-1440 [2013]; Matter of Messina v New YorkState & Local Employees' Retirement Sys., 102 AD3d 1068, 1068-1069[2013], lv denied 21 NY3d 855 [2013]; Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283[2011], lv denied 17 NY3d 711 [2011]).
Petitioner's claim that he was disadvantaged by the absence of counsel is unavailing.The Hearing Officer provided him with an opportunity to secure representation, but hedeclined to do so despite knowing the potentially adverse consequences (seegenerally Matter of Slayton v New York State & Local Retirement Sys., 288AD2d 509, 509-510 [2001]). Likewise, contrary to petitioner's claim, the Hearing Officerbore no responsibility to develop the record on petitioner's behalf.
Peters, P.J., McCarthy and Rose, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1:Such benefits areauthorized by 2 NYCRR part 368 and the Older Workers' Benefit Protection Act(see 29 USC §§ 621-634 [1990], Pub L 101-433, 104 US Stat978).
Footnote 2:That part of petitioner'sapplication seeking ordinary disability retirement benefits was granted.