Opinion
2014-05-1
In the Matter of Anthony ROBERTS, Petitioner, v. THOMAS P. DiNAPOLI, as State Comptroller, Respondent.
Law Office of Joseph A. Romano, Yonkers (Benai Lifshitz of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.
Law Office of Joseph A. Romano, Yonkers (Benai Lifshitz of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.
ROSE, 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 respondent which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a court officer, was injured while he and several other officers attempted to subdue a combative individual outside a courtroom. His application for accidental disability retirement benefits was denied, and he requested a hearing and redetermination. The Hearing Officer found that petitioner had failed to show that the incident constituted an accident within the meaning of the Retirement and Social Security Law. Respondent adopted the Hearing Officer's findings, and this CPLR article 78 proceeding ensued.
Substantial evidence supports respondent's determination and, accordingly, we confirm. In order to qualify for accidental disability retirement benefits, petitioner was obliged to show that his injuries resulted from an accident, i.e., an event that is “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] [internal quotation marks and citation omitted]; accord Matter of Quartucio v. DiNapoli, 110 A.D.3d 1336, 1337, 973 N.Y.S.2d 841 [2013] ). To constitute an accident, therefore, the event must arise from risks that are not inherent to petitioner's regular employment duties ( see Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008]; Matter of Fiducia v. DiNapoli, 111 A.D.3d 1018, 1018, 974 N.Y.S.2d 198 [2013] ). Petitioner's regular job duties included “physically restraining unruly individuals” and, contrary to his contention, the fact that other officers piled on to subdue the individual as he struggled with petitioner on the floor did not render the incident an accident (Matter of Wise v. New York State Comptroller, 38 A.D.3d 1032, 1034, 831 N.Y.S.2d 571 [2007],lv. denied9 N.Y.3d 811, 844 N.Y.S.2d 787, 876 N.E.2d 516 [2007];see Matter of Henry v. DiNapoli, 82 A.D.3d 1446, 1447, 918 N.Y.S.2d 687 [2011] ). Moreover, while it could be inferred that petitioner was assaulted when struck by the individual as he flailed about, “this does not negate the substantial evidence supporting the finding that petitioner's injury was caused by physical contact of the sort that is inherent in the routine performance of his duties” (Matter of Kilbride v. New York State Comptroller, 95 A.D.3d 1496, 1497, 944 N.Y.S.2d 393 [2012],lv. denied19 N.Y.3d 813, 2012 WL 4074169 [2012];see Matter of Wise v. New York State Comptroller, 38 A.D.3d at 1034, 831 N.Y.S.2d 571).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. STEIN, J.P., McCARTHY and EGAN JR., JJ., concur.