Opinion
2014-11-13
In the Matter of Joseph MERCURIO, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.
DEVINE, J.
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 respondentwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a fire lieutenant, was injured in February 2011 when, while responding to a call, he stepped from the cab of the fire engine into a three-foot snow bank and his foot caught the sidewalk curb, twisting his knee. Petitioner thereafter applied for accidental disability retirement benefits and, as relevant here, the application was denied upon a finding that the February 2011 incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Ultimately, respondent upheld the denial and petitioner thereafter commenced this CPLR article 78 proceeding to challenge that determination.
The petitioner bears the burden of demonstrating that he or she is entitled to accidental disability retirement benefits by showing that the precipitating injury was caused by an incident that was “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” ( Matter of Bennett v. DiNapoli, 119 A.D.3d 1310, 1310, 991 N.Y.S.2d 167 [2014] [internal quotation marks and citations omitted] ). Accordingly, a decision to deny benefits must be confirmed when it is shown that the injury was the result of ordinary employment duties rather than the occurrence of an unexpected event ( see Matter of Lundquist v. DiNapoli, 106 A.D.3d 1439, 1439, 967 N.Y.S.2d 154 [2013]; Matter of Brown v. New York State & Local Retirement Sys., 106 A.D.3d 1437, 1438, 967 N.Y.S.2d 430 [2013] ).
Here, petitioner testified that, in the city where he worked, there is usually grass next to the sidewalk and then a curb before the street. Additionally, he related that in his capacity as a firefighter, he had been to the street where the incident occurred between 6 and 12 times and that the exact location where he stepped out of the truck was “[their] spot to pull up.” Accordingly, we find that petitioner could have reasonably anticipated the hazard, even if he did not see the curb before the fall, and therefore respondent's determination is supported by substantial evidence ( see Matter of Bennett v. DiNapoli, 119 A.D.3d at 1311, 991 N.Y.S.2d 167; Matter of Martin v. Murray, 95 A.D.3d 1556, 1556–1557, 943 N.Y.S.2d 805 [2012]; Matter of Tomita v. DiNapoli, 66 A.D.3d 1071, 1072, 886 N.Y.S.2d 250 [2009] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., McCARTHY, EGAN JR. and CLARK, JJ., concur.