Opinion
2130
January 9, 2003.
Order, Supreme Court, New York County (Marcy Friedman, J.), entered May 3, 2001, which granted petitioner's application pursuant to CPLR article 78 to annul respondents' determination denying his application for an accident disability pension to the extent of annulling such determination and remanding the matter to respondents for further proceedings, unanimously reversed, on the law, without costs, the petition denied, and the proceeding dismissed.
David Jalosky, for Petitioner-Respondent.
John Hogrogian, for Respondents-Appellants.
Tom, J.P., Rosenberger, Friedman, Gonzalez, JJ.
Where, as here, the decision to deny accident disability benefits to a retired police officer is the result of a tie vote by respondent Board of Trustees of the Police Pension Fund, the determination is subject to judicial annulment only if it can be determined on the record that the retiree is entitled to greater benefits as a matter of law (see Matter of Meyer v. Board of Trustees, 90 N.Y.2d 139, 145; Matter of Canfora v. Board of Trustees, 60 N.Y.2d 347, 352). In this case, the incident from which petitioner's injury resulted, namely, his receiving a kick in the leg while playing in a Youth Police Academy basketball game as part of his assigned duties, was not so unexpected or out-of-the-ordinary as to constitute an accident as a matter of law (see Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839; Matter of Russell v. Board of Trustees, 288 A.D.2d 19, 20, lv denied 97 N.Y.2d 608; Matter of Hess v. Board of Trustees, 255 A.D.2d 163, 163; Matter of Rosenthal v. Board of Trustees, 252 A.D.2d 388, 389, lv denied 93 N.Y.2d 801). Accordingly, the order granting the petition must be reversed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.