Opinion
534995
03-30-2023
In the Matter of Brian WALSH, Petitioner, v. Thomas P. DINAPOLI, as State Comptroller, Respondent.
Baker, Leshko, Saline & Drapeau, LLP, White Plains (Anthony C. Saline of counsel), for petitioner. Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.
Baker, Leshko, Saline & Drapeau, LLP, White Plains (Anthony C. Saline of counsel), for petitioner.
Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND JUDGMENT
Reynolds Fitzgerald, 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.
Petitioner, a patrol officer, sustained various injuries when he fell while descending a staircase in his precinct. Petitioner's subsequent application for accidental disability retirement benefits was denied upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination, the Hearing Officer upheld the denial and, upon further review, respondent affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
Petitioner did, however, receive performance of duty disability retirement benefits when he subsequently retired.
"As the applicant, petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and respondent's determination in this regard will be upheld if supported by substantial evidence" ( Matter of Margolies v. DiNapoli, 210 A.D.3d 1245, 1245, 178 N.Y.S.3d 604 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Voges v. DiNapoli, 210 A.D.3d 1248, 1249, 178 N.Y.S.3d 791 [3d Dept. 2022] ). "An injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed" ( Matter of Voges v. DiNapoli, 210 A.D.3d at 1249, 178 N.Y.S.3d 791 [internal quotation marks and citations omitted]; accord Matter of Young v. DiNapoli, 208 A.D.3d 1411, 1412, 174 N.Y.S.3d 772 [3d Dept. 2022] ). In contrast, "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental" ( Matter of Castellano v. DiNapoli, 197 A.D.3d 1478, 1479, 154 N.Y.S.3d 170 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Kenny v. Di-Napoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] ). Notably, "a fall as a result of one's own misstep, without more, is not so out-of-the-ordinary or unexpected as to constitute an accidental injury" ( Matter of Sestito v. DiNapoli, 161 A.D.3d 1499, 1500, 78 N.Y.S.3d 731 [3d Dept. 2018] [internal quotation marks and citation omitted]; see Matter of Cavallo v. DiNapoli, 167 A.D.3d 1303, 1304–1305, 91 N.Y.S.3d 277 [3d Dept. 2018] ).
Preliminarily, there is no dispute that petitioner was engaged in the performance of his ordinary duties as a patrol officer at the time that he fell. Petitioner testified that he was in his assigned precinct when the incident occurred and that, after completing some administrative paperwork, he walked upstairs to retrieve something from his locker before going out on patrol. As he was descending the stairs, he "felt like [he] slipped on something," causing him to fall forward. During the course of his testimony, however, petitioner did not identify any defect in the stairs, which he used on a regular basis (see Matter of Batista v. New York State Comptroller, 56 A.D.3d 927, 928, 867 N.Y.S.2d 274 [3d Dept. 2008], lv denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925 [2009] ), nor was he able to identify the substance or occurrence that precipitated his fall (compare Matter of Como v. New York State Comptroller, 202 A.D.3d 1427, 1428, 164 N.Y.S.3d 260 [3d Dept. 2022] ). Although petitioner's application for disability benefits under General Municipal Law § 207–c similarly indicated that he simply "lost [his] foot[ing]" on the stairs, petitioner's application for accidental disability retirement benefits indicated that he fell after he "stepped on a[n] unseen substance." A contemporaneous incident report – prepared by petitioner's supervisor following an interview of petitioner – indicated that petitioner "suddenly and unexpectedly tripped" while descending the stairs in question, but petitioner testified that he never spoke with the author of that report and stated that he did not trip.
Credibility determinations, as well as the resolution of any inconsistencies between the hearing testimony and documentary evidence, are matters for the Hearing Officer and respondent to resolve (see Matter of Margolies v. DiNapoli, 210 A.D.3d at 1246, 178 N.Y.S.3d 604 ; Matter of Zekus v. Gardner, 155 A.D.3d 1297, 1298, 64 N.Y.S.3d 409 [3d Dept. 2017] ). Given the inconsistencies in petitioner's description of his fall, as well as his inability to identify a precipitating accidental event that was not a risk inherent in the work that he performed, "the Hearing Officer rationally concluded that petitioner failed to prove that his fall was the result of anything other than a misstep" ( Matter of Young v. DiNapoli, 208 A.D.3d at 1413, 174 N.Y.S.3d 772 ). Inasmuch as a fall occasioned by a misstep does not constitute an accident, substantial evidence supports respondent's denial of petitioner's application for accidental disability retirement benefits (see id. ; Matter of Sestito v. DiNapoli, 161 A.D.3d at 1500–1501, 78 N.Y.S.3d 731 ; Matter of Zekus v. Gardner, 155 A.D.3d at 1298, 64 N.Y.S.3d 409 ; Matter of Caetano v. DiNapoli, 140 A.D.3d 1579, 1581–1582, 35 N.Y.S.3d 526 [3d Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432779 [2016] ). Accordingly, respondent's determination is confirmed.
Garry, P.J., Lynch, Clark and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.