Opinion
14950, 100850/13.
04-28-2015
In re Jasmine DEVERS, Petitioner–Appellant, v. Raymond KELLY, etc., et al., Respondents–Respondents.
Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
TOM, J.P., SWEENY, MANZANET–DANIELS, CLARK, KAPNICK, JJ.
Opinion Judgment, Supreme Court, New York County (Alexander W. Hunter, J.), entered January 29, 2014, denying the petition to annul respondents' determination, dated April 10, 2013, which denied petitioner's application for accidental disability retirement (ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner claims that she suffered a disabling accident when she slipped and fell on wet, sticky paint while walking down the stairs to her locker. Respondent Board of Trustees denied the application for ADR benefits by a tie vote, and such a denial can be annulled only if petitioner is entitled to ADR benefits as a matter of law (see Matter of Morgan v. Kerik, 305 A.D.2d 288, 760 N.Y.S.2d 34 [1st Dept.2003], lv. denied 1 N.Y.3d 507, 776 N.Y.S.2d 222, 808 N.E.2d 358 [2004] ). Here, in light of the conflicting descriptions of the condition of the stairs, and that the only work order submitted by petitioner indicated that painting had been completed more than two weeks before the accident, the decision to deny petitioner ADR was supported by some credible evidence, and petitioner failed to establish that her fall was caused by the paint rather than her own misstep (see Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998] ; Matter of Bisiani v. Kelly, 39 A.D.3d 261, 833 N.Y.S.2d 72 [1st Dept.2007] ).
Petitioner's contention that the court should have ordered respondents to disclose certain evidence is unpreserved (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ), and waived by her failure to submit a reply to respondents' answer (see Matter of Shufelt v. Beaudoin, 116 A.D.2d 422, 425, 501 N.Y.S.2d 532 [3d Dept.1986] ; see also CPLR 7804[d] ).