Opinion
No. 222 SSM 44.
Decided December 17, 2008.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered April 24, 2008, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in Albany County). The Appellate Division confirmed a determination of respondent New York State Comptroller, which had denied petitioner's application for accidental disability retirement benefits, and dismissed the petition.
Petitioner police detective allegedly sustained injuries when he slipped on a wet ramp while exiting a restaurant. Petitioner testified that he knew it was raining before he arrived at the restaurant and recognized that the ground was still wet when he and his coworkers finished their lunch, exited the restaurant and started to walk to their vehicle.
Matter of Kenny v DiNapoli, 50 AD3d 1445, affirmed.
Annette G. Hasapidis, South Salem, for appellant.
Andrew M. Cuomo, Attorney General, Albany ( William E. Storrs, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for respondent.
OPINION OF THE COURT
The judgment of the Appellate Division should be affirmed, with costs.
In the context of accidental disability retirement benefits, we have defined an accident as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and we have indicated that "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury" ( Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012). In this case, the Comptroller denied the application for accidental disability retirement benefits because petitioner, who slipped on a wet ramp while exiting a restaurant, knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred. In other words, the Comptroller was not persuaded that the incident involved an "unexpected event." Because the Comptroller's conclusion is supported by substantial evidence in the record, the determination was properly confirmed.
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), judgment affirmed, with costs, in a memorandum.