State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 8, 2015 520374 

________________________________

In the Matter of JAMES C. 

BEGLEY,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as New York

State Comptroller, et al.,

Respondents.

________________________________

Calendar Date: September 17, 2015

Before: Peters, P.J., McCarthy, Garry and Rose, JJ.

__________

Kevin P. Sheerin, Mineola, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs of counsel), for respondents.

__________

Garry, 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 Comptroller denying

petitioner's application for enhanced disability retirement

benefits.

Petitioner worked as an ordinance enforcement officer with

the Department of Public Safety for the Town of Huntington in

Suffolk County. On the morning of February 2, 2011, after

arriving at the parking lot at work, he exited his vehicle and

slipped on ice causing him to sustain injuries to his legs, knees

and back. As a result of this incident, petitioner applied for

disability retirement benefits under Retirement and Social
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Security Law article 15. As part of his application, he sought

enhanced benefits on the basis that the incident constituted an

accident within the meaning of Retirement and Social Security Law

§ 605.1 His application for enhanced benefits was denied and he

requested a hearing.2 Petitioner elected to proceed pro se at

the hearing and, at its conclusion, the Hearing Officer upheld

the denial. Thereafter, respondent Comptroller issued a

determination agreeing with the result reached by the Hearing

Officer and finding that petitioner had "failed to meet his

burden of proof that his injury resulted from an accident

sustained in service." This CPLR article 78 proceeding ensued.

 

We confirm. As defined for purposes of the Retirement and

Social Security Law, an unexpected and unfortunate incident does

not constitute an accident, so as to support an award of

benefits, "where the injury results from an expected or

foreseeable event arising during the performance of routine

employment duties'" (Matter of Lundquist v DiNapoli, 106 AD3d

1439, 1439 [2013], quoting Matter of O'Brien v Hevesi, 12 AD3d

895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; see Matter of

Scofield v DiNapoli, 125 AD3d 1086, 1086 [2015]). Significantly,

the burden is on the party seeking benefits to establish that the

incident causing his or her injury was an accident (see Matter of

Lundquist v DiNapoli, 106 AD3d at 1439; Matter of Smith v New

York State & Local Retirement Sys., 103 AD3d 966, 966-967

[2013]).

Here, petitioner testified that the night before the

incident there was an ice storm, and he left for work early the

following morning to allow him time to navigate the icy road

conditions. He stated that he spoke to his supervisor while en

route and arrived in the parking lot about 10 minutes prior to

his regularly scheduled shift. As he exited his vehicle, he took

1 Such benefits are authorized by 2 NYCRR part 368 and the

Older Workers' Benefit Protection Act (see 29 USC §§ 621-634

[1990], Pub L 101-433, 104 US Stat 978).

2 That part of petitioner's application seeking ordinary

disability retirement benefits was granted.
-3- 520374 

a few steps and then slipped and fell in the parking lot. While

he was on the ground, he saw that he was lying on ice, and water

was running down the middle. Based upon petitioner's testimony

describing the occurrence and his awareness of the hazardous

conditions created by the ice storm, he should have reasonably

anticipated that the parking lot would be slippery when he exited

his vehicle. Accordingly, as the precipitating event was

entirely foreseeable, substantial evidence supports the

Comptroller's finding that the incident did not constitute an

accident within the meaning of the Retirement and Social Security

Law and, thus, that petitioner was not entitled to enhanced

benefits (see e.g. Matter of Dicioccio v DiNapoli, 124 AD3d 1170,

1171 [2015]; Matter of Lundquist v DiNapoli, 106 AD3d at 1439-

1440 [2013]; Matter of Messina v New York State & Local

Employees' Retirement Sys., 102 AD3d 1068, 1068-1069 [2013], lv

denied 21 NY3d 855 [2013]; Matter of Ruggiero v DiNapoli, 85 AD3d

1282, 1283 [2011], lv denied 17 NY3d 711 [2011]). 

Petitioner's claim that he was disadvantaged by the absence

of counsel is unavailing. The Hearing Officer provided him with

an opportunity to secure representation, but he declined to do so

despite knowing the potentially adverse consequences (see

generally Matter of Slayton v New York State & Local Retirement

Sys., 288 AD2d 509, 509-510 [2001]). Likewise, contrary to

petitioner's claim, the Hearing Officer bore no responsibility to

develop the record on petitioner's behalf. 

Peters, P.J., McCarthy and Rose, JJ., concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court