| Matter of Schoales v DiNapoli |
| 2015 NY Slip Op 07881 [132 AD3d 1184] |
| October 29, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Edward Schoales,Petitioner, v Thomas 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.
Devine, 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 denying petitioner's application for accidental disability retirementbenefits.
Petitioner worked as a police sergeant in Rockland County for 15 years. He filed anapplication for accidental disability retirement benefits based upon two incidents, one onDecember 1, 2004 and the second on May 3, 2011. Petitioner's application was denied onthe basis that neither of the two incidents constituted an accident within the meaning ofRetirement and Social Security Law § 363. Following a hearing, theHearing Officer also concluded that the incidents in question were not accidents andrecommended that petitioner's application be denied. Based upon the Hearing Officer'srecommendation, respondent issued a final determination denying petitioner's applicationand this CPLR article 78 proceeding ensued.
We confirm. For purposes of the Retirement and Social Security Law, an accident isdefined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, andinjurious in impact" (Matter ofKenny v DiNapoli, 11 NY3d 873, 874 [2008] [internal quotation marks andcitations omitted]; see Matter ofGreco v DiNapoli, 123 AD3d 1366, 1367 [2014]). The burden is on the partyseeking benefits to establish that the injury producing event was accidental (see [*2]Matter of Dicioccio v DiNapoli, 124 AD3d 1170,1171 [2015]; Matter of Greco v DiNapoli, 123 AD3d at 1367). In order to bedeemed accidental, an injury must not have been "the result of activities undertaken inthe ordinary course of one's job duties" but, rather, "must be due to a precipitatingaccidental event which is not a risk of the work performed" (Matter of Pommerville vMcCall, 6 AD3d 1025, 1026 [2004]; see Matter of Fulton v New York State Comptroller, 122 AD3d983, 983 [2014], lv denied 24 NY3d 915 [2015]). Furthermore, where theincident involves a slip and fall, the determinative inquiry is "whether the condition thatcaused the slip could have been 'reasonably anticipated' " (Matter of Sammon v DiNapoli,97 AD3d 952, 953 [2012], quoting Matter of Murphy v New York State Comptroller, 92 AD3d1022, 1023 [2012]; see Matter of Dicioccio v DiNapoli, 124 AD3d at1171).
Dealing first with the December 1, 2004 incident, which occurred at approximately4:00 a.m., petitioner had responded to a security alarm and was inspecting the exterior ofa building in a light rain. He indicated that he had climbed up onto a concrete loadingdock to check an overhead door and was getting ready to lower himself off of it when hisfoot slipped on the edge, which had become icy, and he fell to the ground. Inasmuch aspetitioner could have reasonably foreseen that an elevated concrete surface would be icyon a rainy winter night, substantial evidence supports respondent's conclusion that theDecember 1, 2004 incident was not an accident (see Matter of Messina v New York State & Local Employees'Retirement Sys., 102 AD3d 1068, 1068-1069 [2013], lv denied 21NY3d 855 [2013]; Matter ofRuggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d711 [2011]).
Turning to the May 3, 2011 incident, petitioner stated that he and another officer hadresponded to a private residence where a morbidly obese woman had fallen. The twoofficers attempted to lift her to her feet, and petitioner injured his back when she failed toassist them by moving her feet under her body. Petitioner indicated that he had respondedto such calls for assistance before and the associated risks were, therefore, clearly a partof his routine job duties. In view of this, and absent an unexpected event, substantialevidence also supports respondent's conclusion that the May 3, 2011 incident was not anaccident (see Matter of Herlihyv DiNapoli, 75 AD3d 892, 893 [2010]; Matter of Lucian v McCall, 7 AD3d 905, 906 [2004]).
Garry, J.P., Rose and Lynch, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.