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Lang v. Kelly

Court of Appeals of New York

June 25, 2013

In the Matter of Jean LANG, Appellant,
v.
Raymond KELLY, etc., et al., Respondents. Submitted by appellant,

Jean Lang, appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York City (Keith M. Snow of counsel), for respondents.

MEMORANDUM:

Page 973

The order of the Appellate Division should be affirmed with costs, and the certified question not answered on the ground that it is unnecessary.

In March 2007, petitioner tripped over computer wires that for several months had been strung on the floor across a locker room doorway in her precinct. In a 6-6 decision, respondent Board of Trustees denied her application for accidental disability retirement benefits ( City of New York v. Schoeck, 294 N.Y. 559, 568, 63 N.E.2d 104 [1945] [tie vote of the Board of Trustees will be resolved against applicant] ).

We agree with the Appellate Division that the Board of Trustees could find on this record that petitioner's 2010 statement, which claimed that tape ordinarily secured the wires to the floor but was no longer present on the date she fell, was not credible. Because the record does not establish as a matter of law that petitioner's injury resulted from an incident that was " sudden, fortuitous ... unexpected [or] out of the ordinary," the Board's determination must be upheld ( McCambridge v. McGuire, 62 N.Y.2d 563, 568, 479 N.Y.S.2d 171, 468 N.E.2d 9 [1984]; 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] ).

Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT and RIVERA concur. Judge ABDUS-SALAAM took no part.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered on the ground that it is unnecessary, in a memorandum.


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