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In the Matter of the Claim of Lena Chilelli v. Thomas P. Dinapoli

State of New York Supreme Court, Appellate Division Third Judicial Department


January 12, 2012

IN THE MATTER OF THE CLAIM OF LENA CHILELLI, PETITIONER,
v.
THOMAS P. DINAPOLI, AS STATE COMPTROLLER, RESPONDENT.

The opinion of the court was delivered by: Egan Jr., J.

MEMORANDUM AND JUDGMENT

Calendar Date: November 17, 2011

Before: Peters, J.P., Malone Jr., Stein, Garry and Egan Jr., JJ.

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 school crossing guard, applied for accidental disability retirement benefits after she tripped over a curb and sustained an injury to her left shoulder. Following a hearing and redetermination, petitioner's application was denied upon the ground that, among other things, petitioner did not establish that her injuries were sustained as the result of an accident within the meaning of the Retirement and Social Security Law.

Respondent accepted the findings and conclusions of the Hearing Officer and denied the application, prompting petitioner to commence this CPLR article 78 proceeding to challenge that determination.

As the applicant, petitioner bore the burden of establishing that her injury was caused by "a sudden and extraordinary event that [was] unrelated to the ordinary risks of [her] employment" (Matter of Bleeker v New York State Comptroller, 84 AD3d 1683, 1683-1684 [2011], lv denied 17 NY3d 709 [2011] [internal quotation marks and citation omitted]; accord Matter of O'Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]), and respondent's determination in this regard will not be disturbed if it is supported by substantial evidence in the record as a whole (see Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011]; Matter of West v DiNapoli, 79 AD3d 1565, 1565 [2010]). "[I]njuries that arise out of an employee's own misstep or inattention will not merit an accidental disability determination" (Matter of Piccinini v DiNapoli, 68 AD3d 1212, 1212 [2009] [internal quotation marks and citation omitted]; accord Matter of Magliato v DiNapoli, 78 AD3d 1457, 1458 [2010]), and any inconsistencies between written documents and an applicant's sworn testimony present a credibility issue for respondent to resolve (see Matter of Dilello v DiNapoli, 83 AD3d 1361, 1362-1363 [2011], lv denied NY3d [Nov. 22, 2011]; Matter of Confreda v New York State Comptroller, 56 AD3d 938, 940 [2008], lv denied 12 NY3d 708 [2009]).

Here, petitioner's application for retirement benefits, as well as the underlying incident report, indicate that her injury was caused when she tripped over a curb during the performance of her ordinary duties, i.e., helping school children cross the street. Inasmuch as there is substantial evidence to support respondent's determination that the incident was not an accident within the meaning of the Retirement and Social Security Law, it will not be disturbed -- despite evidence in the record that arguably could support a contrary conclusion (see Matter of O'Keefe v McCall, 287 AD2d 921, 922 [2011]).

Peters, J.P., Malone Jr., Stein and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER: Robert D. Mayberger Clerk of the Court

20120112

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