Opinion
December 29, 1983
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller denying petitioner's application for accidental disability retirement benefits. Petitioner, a police officer of the Town of Orangetown, Rockland County, injured his back while responding to an emergency call which required him to remove a 39-pound resuscitator from the trunk of his police vehicle. At the hearing following the initial denial of his application for accidental disability retirement benefits, petitioner testified that as he removed the resuscitator from the trunk and began to run with it, something caught in the fender inside of the trunk, causing him to fall. He further testified that the injury occurred when his back struck the curb. The application for accidental disability retirement filed on behalf of petitioner states that while petitioner was lifting the resuscitator it became caught inside the trunk, causing strain to petitioner's back and he fell to the street. Petitioner's claim for workers' compensation describes the occurrence in a similar manner. Accordingly, there is substantial evidence in the record to support the Comptroller's determination that petitioner was injured in the performance of his usual and customary duties, as the result of a risk inherent in the activity, and that, therefore, no accident within the meaning of section 363 Retire. Soc. Sec. of the Retirement and Social Security Law had occurred (see Matter of Fabiano v. Regan, 88 A.D.2d 687; Matter of Wuestman v. Regan, 88 A.D.2d 734). Determination confirmed, and petition dismissed, without costs. Sweeney, J.P., Main, Casey, Mikoll and Levine, JJ., concur.