Summary
In Lichtenstein v. Bd. of Trustees of the Police Pension Fund, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 (1982), the Court of Appeals of New York noted that the term "accident" is not specifically defined in the Code.
Summary of this case from Flannelly v. Bd. of Trustees of N.Y.C. PoliceOpinion
Argued October 14, 1982
Decided November 11, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HELEN E. FREEDMAN, J.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Paul T. Rephen and Leonard Koerner of counsel), for appellant.
Louis L. Stutman for respondent.
Murray A. Gordon and John Mills for Vincent J. Bollon and others, amici curiae. Richard A. Dienst and Peter A. Schwartz for Captains Endowment Association and others, amici curiae.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the determination of respondent Board of Trustees of the Police Pension Fund of the Police Department of the City of New York should be reinstated.
In order to obtain accidental disability retirement, petitioner must establish that he suffered physical or mental incapacitation "as a natural and proximate result of an accidental injury received in * * * city-service" (Administrative Code of City of New York, § B18-43.0). The legislative history of the statute indicates that not every line-of-duty injury will support an award of accidental disability retirement. The express requirement that the employee establish that the line-of-duty injury be incurred as the result of an accident was added in 1940 (see Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 N.Y.2d 463). Prior to that time, line-of-duty retirement benefits were payable solely upon a determination that the disability was employment related (L 1920, ch 427, § 1, Administrative Code, §§ B18-4.0, B19-4.0).
Although the term "accident" is not specifically defined by the statute, we adopt the commonsense definition of a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 A.D.2d 97, 100, affd 7 N.Y.2d 222). (According to this definition, an injury which 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 within the meaning of section B18-43.0) (see, e.g., Retirement and Social Security Law, § 363; Matter of Covel v New York State Employees' Retirement System, 84 A.D.2d 902, mot for lv to app den 55 N.Y.2d 606; Matter of Panek v Regan, 81 A.D.2d 738). So, too, the occurrence in question on this appeal involving a back injury sustained while leaning over the hood of an automobile in order to place a summons on the vehicle, cannot be deemed an accidental injury.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.