Matter of Magistro v DiNapoli

2016 NY Slip Op 05893 [142 AD3d 750]

August 25, 2016

Appellate Division, Third Department

As corrected through Wednesday, September 28, 2016

[*1]

In the Matter of David M. Magistro,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent.

Russell A. Schindler, Kingston, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.

Mulvey, 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 officer for the City of Poughkeepsie PoliceDepartment. On the morning of December 1, 2010, he was dispatched to a residencewhere a burglary had occurred. Upon his arrival, he spoke to the homeowner,documented items that were missing and inspected the residence for possible entry pointsand crime scene evidence. He went to inspect a small porch that was connected to thehouse by wooden stairs that were partially covered by an overhanging roof. It wasraining that morning and, when petitioner stepped on the top step, he slipped and sliddown the handrail before eventually catching himself. As a result of injuries that hesustained, he filed an application for accidental disability retirement benefits.^[FN*] His application wasinitially denied on the ground that the December 1, 2010 incident did not constitute anaccident within the meaning of the Retirement and Social Security Law. Petitionerrequested a hearing and [*2]redetermination and,following such hearing, a Hearing Officer denied his application for the same reason.Respondent subsequently adopted the Hearing Officer's decision with supplementalconclusions of law, and this CPLR article 78 proceeding ensued.

We confirm. It is well settled that, for purposes of the Retirement and Social SecurityLaw, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, andinjurious in impact" (Matter of Lichtenstein v Board of Trustees of Police PensionFund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982] [internalquotation marks and citation omitted]; see Matter of Beckley v Nitido, 123 AD3d 1330, 1331[2014]). The burden is on the party seeking benefits to establish that the injury-producingevent was accidental in nature (see Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185[2015]; Matter of Hoehn v NewYork State Comptroller, 122 AD3d 984, 986 [2014]). Notably, in order to bedeemed accidental, an injury must result from a risk that is not an inherent part of one'sregular job duties (see Matter ofSchultz v DiNapoli, 137 AD3d 1454, 1455 [2016]; Matter of Fulton v New York StateComptroller, 122 AD3d 983, 983-984 [2014], lv denied 24 NY3d 915[2015]) or from a hazard that cannot be reasonably anticipated (see Matter of Bennett vDiNapoli, 119 AD3d 1310, 1311 [2014]; Matter of Cavallo v DiNapoli, 117 AD3d 1366, 1367[2014]).

Petitioner's search of the residence following the burglary was a part of his routineduties as a police officer. He acknowledged that it was lightly raining when he conductedthe search and, although he did not see water pooling on the stairs, he believed that theywere wet. He stated that he did not realize that the stairs were slippery until his footslipped on the top stair. Notwithstanding this, petitioner could have reasonablyanticipated the slippery condition of the stairs under the circumstances presented (see Matter of Greco vDiNapoli, 123 AD3d 1366, 1368 [2014]; Matter of Randolph v DiNapoli, 85 AD3d 1288, 1289[2011]). Although petitioner theorized that the stairs were slippery because they had beenpainted with interior paint and were not constructed in accordance with the applicablebuilding code, this presented a credibility issue for respondent to ultimately resolve (see Matter of Messina v New YorkState & Local Employees' Retirement Sys., 102 AD3d 1068, 1069 [2013],lv denied 21 NY3d 855 [2013]; Matter of Assmann v DiNapoli, 95 AD3d 1487, 1488[2012]). Given that substantial evidences supports respondent's determination, wedecline to disturb it.

Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.

Footnote *:Petitioner also filed anapplication for performance of duty disability retirement benefits, which was granted.