Summary
In Matter of Hess v Board of Trustees Police Pension Fund, 255 AD2d 163 (1Dep't 1998), a police officer assigned to the Harbor Unit sustained shoulder injuries "when he tripped on a raised portion of concrete while carrying his scuba equipment" in November 1991 and the following year "when he slipped and fell off a wet ladder while descending into a launch."
Summary of this case from Flood v. KellyOpinion
November 12, 1998
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
Where, as here, the decision to deny accident disability retirement benefits is reached in consequence of a tie vote by respondent Board of Trustees, that determination is subject to judicial annulment only if the retiree is entitled to greater benefits as a matter of law ( Matter of Canfora v. Board of Trustees of Police Pension Fund, 60 N.Y.2d 347, 352). Petitioner, a member of the New York Police Department Harbor Unit, sustained shoulder injuries in November 1991 when he tripped on a raised portion of concrete while carrying his scuba equipment and again in November 1992 when he slipped and fell off a wet ladder while descending into a launch. Given the nature of petitioner's occupational duties as a member of the Harbor Unit, we cannot characterize these occurrences, as a matter of law, as unexpected or out-of-the-ordinary so as to qualify them as accidents for disability retirement purposes ( see, Matter of Stranella v. Bratton, 92 N.Y.2d 836; and see, Matter of Rosenthal v. Board of Trustees of N.Y. City Police Pension Fund, 252 A.D.2d 388).
Concur — Milonas, J. P., Rosenberger, Williams, Tom and Saxe, JJ.