Opinion
2011-10-6
In the Matter of Stephen CARPINIELLO, Petitioner,v.Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough & Monaghan, L.L.P., White Plains (Sean Dooley of counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Bartlett, McDonough & Monaghan, L.L.P., White Plains (Sean Dooley of counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
MERCURE, J.P.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, sustained injuries while involved in an effort to subdue an emotionally disturbed individual for transport to a medical facility for evaluation and treatment. Petitioner's subsequent application for accidental disability retirement benefits was initially denied and he requested a hearing and redetermination. The Hearing Officer denied petitioner's application on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Respondent accepted the Hearing Officer's findings and conclusions and denied petitioner's application. This CPLR article 78 proceeding ensued.
“For purposes of accidental disability retirement benefits, the underlying incident must be ‘a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties' ” ( Matter of Welsh v. New York State Comptroller, 67 A.D.3d 1167, 1168, 888 N.Y.S.2d 318 [2009], lv. denied 14 N.Y.3d 706, 2010 WL 1190467 [2010], quoting Matter of Dzwielewski v. McCall, 277 A.D.2d 622, 622, 714 N.Y.S.2d 842 [2000] ). Here, petitioner acknowledged that dealing with emotionally disturbed individuals and subduing them through physical contact was an ordinary part of his job duties and that he had been required to do so on previous occasions. With regard to respondent's decision not to credit certain other testimony by petitioner that differed from the written incident reports, we note that resolution of all credibility issues is properly left to respondent ( see Matter of Hardy v. DiNapoli, 82 A.D.3d 1490, 1491, 919 N.Y.S.2d 558 [2011]; Matter of Walters v. Hevesi, 23 A.D.3d 982, 983, 804 N.Y.S.2d 483 [2005] ). Inasmuch as respondent's determination that the incident does not constitute an accident is supported by substantial evidence, it must be sustained ( see Matter of Welsh v. New York State Comptroller, 67 A.D.3d at 1168, 888 N.Y.S.2d 318; Matter of Walters v. Hevesi, 23 A.D.3d at 983, 804 N.Y.S.2d 483). Based upon the record before us, we do not find that a different result is required because another officer who was injured during the same incident
was apparently awarded accidental disability retirement benefits.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, STEIN, GARRY and EGAN JR., JJ., concur.