| Matter of Kelly v DiNapoli |
| 2016 NY Slip Op 02132 [137 AD3d 1470] |
| March 24, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of James J. Kelly,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Jason Lewis ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
McCarthy, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination ofrespondent denying petitioner's application for accidental disability retirementbenefits.
Petitioner, a police officer, injured his neck and shoulder while rescuing peopletrapped in a house due to damage caused by Hurricane Sandy. He thereafter applied foraccidental disability retirement benefits and the application was denied on the groundthat the incident did not constitute an accident within the meaning of the Retirement andSocial Security Law. Ultimately, respondent upheld the denial and petitioner commencedthis CPLR article 78 proceeding challenging that determination.
We confirm. Respondent's determination will be upheld if supported by substantialevidence (see Matter of Roth vDiNapoli, 105 AD3d 1183, 1184 [2013]). For the purposes of Retirement andSocial Security Law § 363, an injury that results from "a risk of the workperformed" is not an accident (Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185[2015] [internal quotation marks and citation omitted]; see Matter of Hyland v New YorkState Comptroller, 121 AD3d 1149, 1149 [2014]). Consistent with thisprinciple, this Court has long recognized that police officers face many substantial risksin the regular course of their duties [*2]that are inherentto the work that they perform (see e.g. Matter of Schoales v DiNapoli, 132 AD3dat 1186; Matter of Lanzetta vDiNapoli, 130 AD3d 1109, 1009-1110 [2015]; Matter of Scofield v DiNapoli,125 AD3d 1086, 1086-1087 [2015]; Matter of Dicioccio v DiNapoli, 124 AD3d 1170,1170-1172 [2015]; Matter ofBennett v DiNapoli, 119 AD3d 1310, 1310-1311 [2014]; Matter of Carpenter vDiNapoli, 104 AD3d 1037, 1038 [2013]; Matter of Franks v New York State & Local RetirementSys., 47 AD3d 1115, 1115-1116 [2008]; Matter of Sansone v Levitt, 67AD2d 1044, 1044-1045 [1979]).
According to petitioner, he was considered a first responder to emergency calls andhad a duty to assist injured persons. The Uniform Police Officer Job Description thatgoverned petitioner's job confirmed petitioner's testimony to the extent that it dictatedthat his professional responsibilities included "[a]ssist[ing] any injuredpersons."[FN*]Petitioner acknowledged that, due to the hurricane, his supervisors had impressed uponhim that his professional duty extended to responding to emergency calls involving lifeand limb. Petitioner explained that he answered a call regarding occupants of a housewho were trapped due to a tree falling onto and through the home. Petitioneracknowledged that, when he arrived, the home was not a stable structure and debris wasstill falling, but he explained that he had to go in to help the trapped occupants. Petitionerwas thereafter injured while throwing debris off of the trapped occupants and whileholding up debris that continued to fall during that rescue effort. Accordingly, areasonable conclusion to draw from the record is that the threat that compelledpetitioner's response as a police officer and first responder—the dangerouscondition in the home—was the same threat that ultimately caused petitioner'sinjuries. Given this substantial evidence that petitioner's injury resulted from foreseeablerisks inherent to being a police officer whose duty it was to assist injured persons, wewill not disturb respondent's determination (see Matter of Schoales v DiNapoli,132 AD3d at 1186; Matter of Lanzetta v DiNapoli, 130 AD3d at 1109-1110;Matter of Scofield v DiNapoli, 125 AD3d at 1086-1087; Matter of Diciocciov DiNapoli, 124 AD3d at 1170-1172).
Devine and Clark, JJ., concur.
Garry, J. (dissenting). We respectfully dissent, as we find that the circumstances ofpetitioner's injury were of [*3]an extraordinary, urgent,and wholly unanticipated nature, and the resulting risks to him were beyond the scope ofhis anticipated duties, even given the potentially dangerous nature of his work as a policeofficer. Petitioner's injuries resulted from circumstances that were "unusual, unexpectedand not a risk inherent in the ordinary performance of [his] regular duties" (Matter ofLeuenberger v McCall, 235 AD2d 906, 907 [1997]; see Matter of Pratt vRegan, 68 NY2d 746, 747-748 [1986]). He was providing urgent emergency servicesin the midst of a hurricane. Upon arriving at the scene, he found a partially destroyed,unstable structure with two walls and half of the roof missing; it was raining, there werehigh winds, and debris and trees were continuing to fall. One resident was already deadand others were trapped inside. Due to the ongoing storm conditions and surroundingdevastation, petitioner soon learned that there would be no further aid or assistanceavailable—no one else was able to reach the scene. The record reveals withoutcontradiction that absent these highly exceptional circumstances, and in the ordinarycourse of petitioner's duties, he would neither have entered the unstable structure norattempted the rescue that caused his injuries.
Petitioner's general job duties necessarily included assisting injured persons.However, it was not his personal duty to directly provide aid in every circumstance. Theuncontroverted testimony demonstrated that petitioner's job duties did not encompassentering unstable structures under unsafe circumstances to carry out rescues; to thecontrary, he was specifically instructed not to do so. Indeed, petitioner lacked anytraining to carry out such rescues, a compelling factor in this analysis. The establisheddepartment protocol called for petitioner to assess the safety of a scene upon arrival. Ifhis assessment revealed that a structure was unstable, he was not to enter it. It wasinstead his duty to call for personnel with the necessary training. While awaiting theirarrival, petitioner's further duty was to maintain the perimeter, prevent people fromentering, call for supervisors or ambulances if necessary and, in short, provide the safestpossible conditions to allow people possessing the appropriate skills and training to carryout the rescue.
Here, petitioner was unable to comply with the established protocol due to theunusually severe storm in progress. Upon calling for assistance, petitioner learned thatthe fire department would be substantially delayed, the technical rescue team was twohours away, and other police officers were unable to report. There were but two rescuersavailable—petitioner and his partner. Therefore, despite their lack of training andthe instability of the structure, they entered the house and attempted the rescue. Petitionerfelt an injury in his shoulder as he threw debris off the trapped and injured residents, butcontinued to work. Shortly thereafter, an overhead rafter began to fall toward petitioner'spartner and the residents. Grabbing it, petitioner immediately felt additional pain in hisshoulder and neck. This injury thus resulted directly from the instability of the structure;but for the intense urgency, it may have been possible to shore up the structure anddecrease the risk of injury to the rescuers. These unusual facts reveal the whollyunexpected nature of the event, in which "time was of the essence" and petitioner wasconfronted with the immediate need to gain access to an unstable structure despite hislack of appropriate training, and place the occurrence well outside the ordinaryexpectations and anticipated demands of petitioner's job duties (Matter of Cantone vMcCall, 289 AD2d 863, 864 [2001]). In clear contrast to the recent authority reliedupon by the majority, there is simply nothing in the underlying circumstances that may beconsidered either routine or ordinary, even for a police officer (compare Matter of Schoales vDiNapoli, 132 AD3d 1184, 1885-1186 [2015]; Matter of Lanzetta v DiNapoli,130 AD3d 1109, 1110 [2015]; Matter of Dicioccio v DiNapoli, 124 AD3d 1170, 1171[2015]).
For the same reasons, we further find that respondent's determination to the effectthat petitioner's injury resulted from "voluntarily attempting a task routinely performedby other [*4]officers" (Matter of Caramante vRegan, 129 AD2d 850, 852 [1987], lv denied 69 NY2d 611 [1987]; seeMatter of Woods v McCall, 240 AD2d 839, 839 [1997], lv denied 90 NY2d808 [1997]) was unsupported by substantial evidence. Accordingly, we would grant thepetition and annul the determination.
Lynch, J., concurs. Adjudged that the determination is confirmed, without costs, andpetition dismissed.
Footnote *:In our view, thisdescription sets forth the ordinary and anticipated demands of petitioner's job, and thedissent's conclusion that petitioner's assistance of injured persons here was "well outsidethe ordinary expectations and anticipated demands of petitioner's job duties" fails toaccount for the fact that petitioner's actions unambiguously fell within his official jobdescription. Further, a rational factfinder was not required to ignore this official jobdescription in favor of the self-serving job description that petitioner provided in histestimony. Notably, petitioner's testimony to the effect that he was not professionallyobligated to assist the injured persons here was not supported by any further evidence,and a rational person could conclude that it contradicted the official job description.