Opinion
2013-03-21
In the Matter of Scott W. CARPENTER, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN and GARRY, JJ.
MERCURE, J.P.
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 officer, was injured while attempting to subdue a mentally disabledindividual who was throwing rocks at motor vehicles. Following petitioner's request for a hearing, the Hearing Officer denied his application for accidental disability retirement benefits, finding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Respondent adopted that determination, prompting this CPLR article 78 proceeding.
We confirm. “Petitioner bore the burden of proving entitlement to accidental disability retirement benefits and [respondent's] determination will be upheld if supported by substantial evidence” ( Matter of Bleeker v. New York State Comptroller, 84 A.D.3d 1683, 1683, 923 N.Y.S.2d 788 [2011],lv. denied17 N.Y.3d 709, 2011 WL 4089680 [2011] [citation omitted]; accord Matter of Butrico v. New York State Comptroller, 97 A.D.3d 1033, 1034, 949 N.Y.S.2d 239 [2012] ). To obtain accidental disability retirement benefits, a petitioner must demonstrate that the underlying accident was “ ‘a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties' ” ( Matter of Welsh v. New York State Comptroller, 67 A.D.3d 1167, 1168, 888 N.Y.S.2d 318 [2009],lv. denied14 N.Y.3d 706, 2010 WL 1190467 [2010], quoting Matter of Dzwielewski v. McCall, 277 A.D.2d 622, 622, 714 N.Y.S.2d 842 [2000];accord Matter of Murphy v. New York State Comptroller, 92 A.D.3d 1022, 1022, 937 N.Y.S.2d 721 [2012] ).
Petitioner testified that he knew the suspect, who flailed his arm at petitioner when he approached; petitioner then grabbed the suspect in a bear hug. The suspect's body went limp and both he and petitioner fell to the ground, with the suspect landing on top of petitioner. The suspect then began to cry. The risk of injury resulting from restraining emotionally disturbed individuals is an inherent risk of a police officer's duties ( see Matter of Reynolds v. DiNapoli, 97 A.D.3d 892, 893, 948 N.Y.S.2d 202 [2012];Matter of Rykala v. New York State Comptroller, 92 A.D.3d 1077, 1078, 937 N.Y.S.2d 754 [2012];Matter of Carpiniello v. DiNapoli, 88 A.D.3d 1045, 1046, 930 N.Y.S.2d 685 [2011] ). Accordingly, respondent's determination that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law is supported by substantial evidence and will not be disturbed ( see Matter of Jarosz v. DiNapoli, 95 A.D.3d 1500, 1501, 944 N.Y.S.2d 395 [2012];Matter of Olivera v. New York State & Local Employees' Retirement Sys., 82 A.D.3d 1434, 1435, 918 N.Y.S.2d 681 [2011];Matter of Welsh v. New York State Comptroller, 67 A.D.3d at 1169, 888 N.Y.S.2d 318). Petitioner's remaining argument has been considered and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.