Opinion
Decided December 9, 1999
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 Comptroller which denied petitioner's application for accidental disability retirement benefits.
Scheine, Fusco, Brandenstein Rada (Bari M. Lewis of counsel), Woodbury, for petitioner.
Eliot Spitzer, Attorney-General (Francis V. Dow of counsel), Albany, for respondents.
BEFORE: MIKOLL, J.P., MERCURE, YESAWICH JR., PETERS and GRAFFEO, JJ.
MEMORANDUM AND JUDGMENT
Petitioner, who was injured when she slipped and fell at her place of employment while walking on a floor which she described as highly waxed and slippery, contends that respondent Comptroller erred in concluding that she did not sustain an accident within the meaning of Retirement and Social Security Law § 63. An accident is "`a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'" (Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012, quoting Johnson Corp. v. Indemnity Ins. Co. of N. Am., 6 A.D.2d 97, 100, affd 7 N.Y.2d 222). "[A]n injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) is not an accidental injury" (Matter of Cadiz v. McCall, 236 A.D.2d 766, 766). There is substantial evidence in the record to support the Comptroller's determination that petitioner, who was aware of the slippery condition, was not injured as the result of a sudden or unexpected event (see, Matter of Kalis v. McCall, 257 A.D.2d 838; Matter of Kazmierczak v. McCall, 252 A.D.2d 728,lv denied 92 N.Y.2d 813; Matter of Talerico v. McCall, 239 A.D.2d 863;Matter of Keller v. Regan, 212 A.D.2d 856). The determination is, therefore, confirmed.
Mikoll, J.P., Mercure, Yesawich Jr. and Graffeo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.