Opinion
No. CV-23-1359
03-21-2024
In the Matter of Hung-Haw Chern, Petitioner, v. Thomas P. DiNapoli, as State Comptroller, Respondent.
Schwab & Gasparini, PLLC, White Plains (Victor Aqeel of counsel), for petitioner. Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.
Calendar Date: February 23, 2024
Schwab & Gasparini, PLLC, White Plains (Victor Aqeel of counsel), for petitioner.
Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.
Before: Garry, P.J., Aarons, Lynch, Fisher and Mackey, JJ.
Garry, P.J.
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 denying petitioner's application for accidental disability retirement benefits.
In 2020, petitioner, a police officer, filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to injuries sustained in an incident on May 6, 2020 when he fell while engaged in a training exercise at the police academy. The New York State and Local Police and Fire Retirement System denied his application on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing for redetermination, a Hearing Officer denied the application, concluding that the incident occurred during a training program that was an ordinary part of petitioner's job duties and a normal risk of those duties and, as such, was not an accident for purposes of accidental disability retirement benefits. Respondent upheld the denial of the application, adopting those findings and conclusions of law. This CPLR article 78 proceeding ensued.
We confirm. For purposes of the Retirement and Social Security Law, an accident is "defined as a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Schemmer v DiNapoli, 196 A.D.3d 958, 959 [3d Dept 2021] [internal quotation marks and citation omitted]; see Matter of Kelly v DiNapoli, 30 N.Y.3d 674, 681 [2018]; Matter of 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 [1982]). Under settled law, "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom" (Matter of Bohack v DiNapoli, 197 A.D.3d 1384, 1385 [3d Dept 2021] [internal quotation marks and citations omitted; emphasis added]; accord Matter of Quartucio v DiNapoli, 110 A.D.3d 1336, 1337 [3d Dept 2013]; see Matter of Fanning v DiNapoli, 140 A.D.3d 1582, 1583 [3d Dept 2016]; Matter of Dicioccio v DiNapoli, 124 A.D.3d 1170, 1171 [3d Dept 2015]; Matter of Wolak v DiNapoli, 71 A.D.3d 1370, 1371 [3d Dept 2010]; Matter of Hulse v DiNapoli, 70 A.D.3d 1235, 1236 [3d Dept 2010]). It is petitioner's burden to establish that the event producing the injury was accidental in nature, and respondent's determination will be upheld where it is supported by substantial evidence (see Matter of Rizzo v DiNapoli, 201 A.D.3d 1098, 1099 [3d Dept 2022], affd 39 N.Y.3d 991 [2022]; Matter of Schemmer v DiNapoli, 196 A.D.3d at 959).
Petitioner testified that, as part of his assignment to the community policing unit, which uses bicycles, he participated in a required 10-day training program that involved classroom instruction and hands-on training exercises, including bicycle techniques he might use in the performance of his duties. After the instructors demonstrated the technique and petitioner practiced it, petitioner participated in a simulated training exercise that required him to dismount from a moving bicycle and then run on foot to chase an instructor acting as a fleeing "suspect." During the exercise, petitioner lost his balance and fell on his knee, causing injuries. A video recording that captured the incident was viewed during the hearing. Petitioner confirmed that the bicycle was not defective and that he did not hit anything while riding the bicycle and did not slip or trip on anything while attempting to dismount.
"Pursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Quartucio v DiNapoli, 110 A.D.3d at 1337 [internal quotation marks and citations omitted]). Petitioner's job duties included on-the-job training in law enforcement techniques and he acknowledged that his duties as part of the unit to which he was assigned included bicycle training. As we previously recognized in comparable scenarios, incidents in which injuries are sustained while participating in a training exercise as part of routine job duties and involving normal risks related thereto, including police officers injured while practicing running dismounts during bicycle patrol training, do not constitute accidents for purposes of accidental disability retirement benefits (see Matter of Hulse v DiNapoli, 70 A.D.3d at 1236; Matter of Marsala v New York State & Local Employees' Retirement Sys., 14 A.D.3d 984, 985 [3d Dept 2005], lv denied 4 N.Y.3d 709 [2005]; see also Matter of Bohack v DiNapoli, 197 A.D.3d at 1385; Matter of Schemmer v DiNapoli, 196 A.D.3d at 959; Matter of Fanning v DiNapoli, 140 A.D.3d at 1583; Matter of Quartucio v DiNapoli, 110 A.D.3d at 1337). The fact that, during the simulated exercise, the instructor yelled at petitioner to pedal faster prior to his fall and, after the fall, yelled at him to proceed with the exercise, does not render the incident an accident (see Matter of O'Mahony v DiNapoli, 157 A.D.3d 1107, 1109 [3d Dept 2018]). As substantial evidence supports respondent's determination, it will not be disturbed (see Matter of Rizzo v DiNapoli, 201 A.D.3d at 1099; Matter of O'Mahony v DiNapoli, 157 A.D.3d at 1108-1109; Matter of Hulse v DiNapoli, 70 A.D.3d at 1236; Matter of Marsala v New York State & Local Employees' Retirement Sys., 14 A.D.3d at 985).
Aarons, Lynch, Fisher and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.