State of New York Supreme Court, Appellate Division Third Judicial Department
December 13, 2012
IN THE MATTER OF FRANK J. SUPPA, PETITIONER,
THOMAS P. DINAPOLI, AS STATE COMPTROLLER, RESPONDENT.
The opinion of the court was delivered by: Lahtinen, J.
MEMORANDUM AND JUDGMENT
Calendar Date: November 13, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, 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 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 AD3d 1078, 1078 ; see Matter of Murphy v New York State Comptroller, 92 AD3d 1022, 1022 ). 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 AD3d 1235, 1236  [internal quotation marks and citations omitted]; accord Matter of Kempkes v DiNapoli, 81 AD3d 1071, 1072 ). 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 AD3d 895, 896 , lv dismissed 5 NY3d 749 ; accord Matter of Canner v New York State Comptroller, 97 AD3d 1091, 1092 , lv denied ___ NY3d ___ [Nov. 19, 2012]; Matter of Murray v New York State Comptroller, 84 AD3d 1681, 1682 ).
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 NY3d 873, 875 ; Matter of Sullivan v DiNapoli, 95 AD3d 1558, 1560 ).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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