In the Matter of ROBERT W. BODENMILLER, Petitioner,
THOMAS P. DiNAPOLI, as State Comptroller, et al., Respondents.
Calendar Date: November 16, 2017
W. Bodenmiller, West Babylon, petitioner pro se.
T. Schneiderman, Attorney General, Albany (William E. Storrs
of counsel), for respondents.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT
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 Comptroller denying
petitioner's application for accidental disability
a police officer, responded to a call with a fellow officer
concerning an emotionally disturbed person. The individual
was located in a coffee shop and she became unruly and
struggled with petitioner as he attempted to handcuff her.
After the handcuffs were applied, the individual's
boyfriend charged at the officers, and petitioner, believing
that the boyfriend was carrying a weapon, drew his firearm
and shot the boyfriend.
thereafter applied for accidental disability retirement
benefits on the ground that he was permanently incapacitated
from performing his job duties due to an injury to his left
shoulder resulting from the interaction with the emotionally
disturbed individual. The application was initially denied on
the ground that the incident did not constitute an accident
within the meaning of the Retirement and Social Security Law.
Following a hearing, a Hearing Officer also concluded that
the incident was not an accident. Respondent Comptroller
adopted the Hearing Officer's decision and this CPLR
article 78 proceeding ensued.
confirm. "Petitioner bears the burden of demonstrating
that his disability arose out of an accident as defined by
the Retirement and Social Security Law, and [the
Comptroller's] determination in that regard will be
upheld if supported by substantial evidence" (Matter
of Rolon v DiNapoli, 67 A.D.3d 1298, 1299 
[citation omitted]; accord Matter of Portmore v New York
State Comptroller, 152 A.D.3d 945, 946 ). "In
order to be deemed accidental, an injury must not have been
the result of activities undertaken in the ordinary course of
one's job duties but, rather, must be due to a
precipitating accidental event which is not a risk of the
work performed" (Matter of Schoales v DiNapoli,
132 A.D.3d 1184, 1185  [internal quotation marks and
citations omitted]; accord Matter of Lester v New York
State Comptroller, 143 A.D.3d 1038, 1038 ).
Notably, "[t]he risk of injury resulting from
restraining emotionally disturbed individuals is an inherent
risk of a police officer's duties" (Matter of
Carpenter v DiNapoli, 104 A.D.3d 1037, 1038 ;
see Matter of Somuk v DiNapoli, 145 A.D.3d 1339,
injury report prepared by his supervisor a week after the
incident, petitioner reported injuries to both his shoulders,
left arm and right elbow resulting from having to restrain
the emotionally disturbed individual. He also reported that
the portion of the incident involving the discharge of his
firearm resulted in an injury to his right ear, as well as
psychological injuries. The employer's report of injury,
also prepared in the weeks following the incident, listed
injuries to petitioner's left shoulder and right elbow,
caused while restraining the emotionally disturbed
individual, and an injury to his right ear and psychological
trauma related to the discharge of his weapon. At the
hearing, however, petitioner testified that he now believes,
based upon conversations that he has had with certain
physicians in the years since the incident, that the injury
to his left shoulder actually occurred as a result of him
swinging open and extending his left arm to protect his
fellow officer when the other individual charged them and
petitioner shot at the individual. The Hearing Officer
credited the contemporaneous written reports and rejected
petitioner's testimony as speculative and unsupported.
"The assessment of petitioner's sworn testimony, as
well as the evaluation of any apparent inconsistency between
such testimony and the written documentation, presented
credibility issues for the Hearing Officer and, ultimately,
the Comptroller to resolve" (Matter of Hardy v
DiNapoli, 82 A.D.3d 1490, 1491  [citation
omitted]; accord Matter of Messina v New York State &
Local Employees' Retirement Sys., 102 A.D.3d 1068,
1069 , lv denied 21 N.Y.3d 855');">21 N.Y.3d 855 ).
Inasmuch as there is substantial evidence supporting the
Comptroller's determination that petitioner's
injuries arose from restraining an emotionally disturbed
individual, which is an inherent risk of his employment, we
will not disturb that determination (see Matter of Somuk
v DiNapoli, 145 A.D.3d at 1340-1341; Matter of
Carpenter v DiNapoli, 104 A.D.3d at 1038; Matter of
Carpiniello v DiNapoli, 88 A.D.3d 1045, 1046 ).
Devine, Mulvey and Aarons, JJ., concur.
that the determination is confirmed, without costs, ...