Opinion
2013-04-11
In the Matter of Roger S. ROTH, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Patricia D'Alvai of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.
Bartlett, McDonough & Monaghan, LLP, White Plains (Patricia D'Alvai of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN and GARRY, JJ.
ROSE, 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 respondentwhich denied petitioner's application for accidental disability retirement benefits.
While on duty as a police officer, petitioner received a call of a larceny in progress at a local department store. He responded to the scene where he observed the suspect fleeing on a bicycle and then on foot. Petitioner left his vehicle and began chasing the suspect through a wooded area. When he observed the suspect jump over a ravine, he decided not to attempt to cross it for safety reasons. Instead, he stood within a foot of the edge of the ravine and made a radio call to report that the suspect was escaping. The edge of the ravine then collapsed and petitioner fell into the ravine, sustaining injuries. Petitioner filed an application for accidental disability retirement benefits, but it was denied on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Following a hearing, the Hearing Officer denied petitioner's application for the same reason. This decision was upheld by respondent, resulting in this CPLR article 78 proceeding.
Petitioner's application included another incident that occurred on December 10, 2002, but petitioner has since withdrawn his claim for benefits based upon this incident.
Initially, it is well settled that the burden is upon petitioner to demonstrate that his injury was the result of an accident ( see Matter of Lenci v. DiNapoli, 92 A.D.3d 1078, 1079, 937 N.Y.S.2d 755 [2012];Matter of Murphy v. New York State Comptroller, 92 A.D.3d 1022, 1022, 937 N.Y.S.2d 721 [2012] ). For purposes of the Retirement and Social Security Law, the accident must be “ ‘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];see Matter of Neidecker v. DiNapoli, 82 A.D.3d 1483, 1483–1484, 919 N.Y.S.2d 557 [2011] ). Notably, respondent's determination in this regard will be upheld if supported by substantial evidence ( see Matter of Sweeney v. New York State Comptroller, 86 A.D.3d 893, 893, 927 N.Y.S.2d 483 [2011] ).
Here, petitioner was performing his regular police duties chasing a suspect within his authorized patrol area at the time he was injured. As we have recognized, the “pursuit of suspects is an ordinary employment duty of a police officer” (Matter of Melendez v. New York State Comptroller, 54 A.D.3d 1128, 1129, 863 N.Y.S.2d 844 [2008],lv. denied12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ). Petitioner's pursuit took him through a wooded area to the edge of a ravine where he stopped because he recognized the danger of falling into it. Nevertheless, he stood too close to the edge, the edge gave way under his weight and he fell into the ravine in a manner that he reasonably could have anticipated ( see e.g. Matter of Sweeney v. New York State Comptroller, supra;Matter of Neidecker v. DiNapoli, supra;Matter of Melendez v. New York State Comptroller, supra; Matter of Franks v. New York State & Local Retirement Sys., 47 A.D.3d 1115, 1116, 849 N.Y.S.2d 714 [2008];Matter of Fischer v. New York State Comptroller, 46 A.D.3d 1006, 1006, 846 N.Y.S.2d 482 [2007];Matter of Penkalski v. McCall, 292 A.D.2d 735, 736, 738 N.Y.S.2d 763 [2002] ). Therefore, we conclude that substantial evidence supports respondent's determination and we decline to disturb it. Petitioner's remainingcontentions have been considered and are unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
MERCURE, J.P., LAHTINEN and GARRY, JJ., concur.