Opinion
2012-12-13
In the Matter of Frank J. SUPPA, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan K. Allen of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan K. Allen of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.
LAHTINEN, 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 police detective, was standing on a retaining wall made up of loose stones conducting surveillance on a robbery suspect when the stone he was standing on shifted and rolled off of the wall, causing him to slip and injure his back and right knee. He thereafter applied for performance of duty and accidental disability retirement benefits, claiming he was permanently disabled from performing his duties as a police detective as a result of his injuries. Petitioner was awarded performance of duty retirement benefits, but his application for accidental disability retirement benefits was denied by respondent on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. This CPLR article 78 proceeding ensued.
We confirm. “Petitioner bears the burden of proving that his injury was accidental, and respondent's determination will be upheld if supported by substantial evidence” (Matter of Lenci v. DiNapoli, 92 A.D.3d 1078, 1078, 937 N.Y.S.2d 755 [2012];see Matter of Murphy v. New York State Comptroller, 92 A.D.3d 1022, 1022, 937 N.Y.S.2d 721 [2012] ). An accident, under the meaning of the Retirement and Social Security Law, is “a sudden, fortuitous mischance which is unexpected and out of the ordinary” (Matter of Hulse v. DiNapoli, 70 A.D.3d 1235, 1236, 895 N.Y.S.2d 249 [2010] [internal quotation marks and citations omitted]; accord Matter of Kempkes v. DiNapoli, 81 A.D.3d 1071, 1072, 916 N.Y.S.2d 338 [2011] ). Moreover, “an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties” (Matter of O'Brien v. Hevesi, 12 A.D.3d 895, 896, 784 N.Y.S.2d 701 [2004],lv. dismissed5 N.Y.3d 749, 800 N.Y.S.2d 867, 834 N.E.2d 778 [2005];accord Matter of Canner v. New York State Comptroller, 97 A.D.3d 1091, 1092, 949 N.Y.S.2d 288 [2012],lv. denied20 N.Y.3d 851, 2012 WL 5834767 [Nov. 19, 2012];Matter of Murray v. New York State Comptroller, 84 A.D.3d 1681, 1682, 924 N.Y.S.2d 192 [2011] ).
Here, petitioner testified that he was performing a routine job duty when he was injured. Further, he stated that he was aware that the stone wall that he climbed upon was made up of “large loose boulders” that were merely piled on top of each other, without anything holding the boulders together. Under these circumstances, the possibility that one of the boulders would come loose under petitioner's weight as he was standing on it was a foreseeable event. Accordingly, substantial evidence supports respondent's determination that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law ( see Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 875, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008];Matter of Sullivan v. DiNapoli, 95 A.D.3d 1558, 1560, 944 N.Y.S.2d 789 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.