| Matter of Lamb v DiNapoli |
| 2016 NY Slip Op 03948 [139 AD3d 1312] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Stanley Lamb,Petitioner, v Thomas P. DiNapoli, as Comptroller of the State of New York, etal., Respondents. |
Sherman, Federman, Sambur & McIntyre, New York City (Sean PatrickRiordan of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondents.
Lahtinen, 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 Comptroller denying petitioner's application for accidental disabilityretirement benefits.
Petitioner, a police officer with the Port Authority of New York and New Jersey for28 years, applied for accidental disability retirement benefits following a slip and fall in astairwell on May 23, 2012, contending that he permanently injured his left knee.Following a hearing, a Hearing Officer denied the application upon the ground that theincident did not constitute an accident within the meaning of Retirement and SocialSecurity Law § 363. Respondent Comptroller adopted the Hearing Officer'sfindings and conclusions, prompting petitioner to commence this CPLR article 78proceeding.
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 andcitation omitted]). The burden was on petitioner, as the party seeking benefits, toestablish that the injury producing event was accidental and, "to be deemed accidental, aninjury must not have been the result of activities undertaken in the ordinary course ofone's job duties but, rather, must [*2]be due to aprecipitating accidental event which is not a risk of the work performed" (Matter of Schoales v DiNapoli,132 AD3d 1184, 1185 [2015] [internal quotation marks and citations omitted]).Moreover, injuries incurred due to conditions that are readily observable and could bereasonably anticipated, or attributable to an employee's own misstep or inattention, donot constitute accidents (seeMatter of Holden v DiNapoli, 122 AD3d 1105, 1106 [2014]; Matter of Yurko v DiNapoli,122 AD3d 1047, 1048 [2014]; Matter of DiGiacomo v DiNapoli, 115 AD3d 1138, 1139[2014]).
Petitioner testified that, on the day in question, he was working his regularassignment patrolling the lower level toll booth lanes on the George Washington Bridgewhen, while descending stairs returning from a break, he slipped on the landing of astairwell in the administrative building. Traversing this employee staircase was a routinepart of petitioner's police patrol duties, as he testified that he used the stairwell multipletimes every day during his shift. In the contemporaneous incident report prepared by apolice sergeant, petitioner reported that he had slipped on a "wet spot" and the weatherconditions were described as "on and off rain." At the hearing, however, petitionertestified that he had no recollection of the weather conditions that day and described thesurface where he had slipped as a "large puddle," two to three feet wide, which heclaimed was not observable as it blended with the similarly-colored floor surface. TheComptroller discredited petitioner's testimony to the extent that it was inconsistent withthe incident report, given his ability to observe the weather conditions at length that daywhile working outside, and concluded that a large puddle would have been readilyobservable. Notably, the assessment of credibility and resolution of apparent conflictingevidence was for the Comptroller to resolve (see Matter of Messina v New York State & Local Employees'Retirement Sys., 102 AD3d 1068, 1069 [2013], lv denied 21 NY3d 855[2013]). Given that the incident occurred during the performance of routine employmentduties, that petitioner could have reasonably anticipated that the stairs would be wet andslippery on a rainy day, and that the fall resulted from petitioner's own misstep orinattention, substantial evidence supports the Comptroller's determination that theincident did not constitute an accident within the meaning of the Retirement and SocialSecurity Law (see Matter of Schoales v DiNapoli, 132 AD3d at 1186; Matterof Holden v DiNapoli, 122 AD3d at 1106; Matter of Yurko v DiNapoli, 122AD3d at 1048; Matter of DiGiacomo v DiNapoli, 115 AD3d at 1139).
McCarthy, Devine, Clark and Mulvey, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.