State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 519852 

________________________________

In the Matter of EDWARD

SCHOALES,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS DiNAPOLI, as State

Comptroller,

Respondent.

________________________________

Calendar Date: September 18, 2015

Before: Garry, J.P., Rose, Lynch and Devine, JJ.

__________

Bartlett, McDonough & Monaghan, LLP, White Plains (Michael

J. Catallo of counsel), for petitioner.

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

Storrs of counsel), for respondent.

__________

Devine, 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 worked as a police sergeant in Rockland County

for 15 years. He filed an application for accidental disability

retirement benefits based upon two incidents, one on December 1,

2004 and the second on May 3, 2011. Petitioner's application was

denied on the basis that neither of the two incidents constituted

an accident within the meaning of Retirement and Social Security

Law § 363. Following a hearing, the Hearing Officer also
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concluded that the incidents in question were not accidents and

recommended that petitioner's application be denied. Based upon

the Hearing Officer's recommendation, respondent issued a final

determination denying petitioner's application and this CPLR

article 78 proceeding ensued.

We confirm. For purposes of the Retirement and Social

Security Law, an accident is defined as "a sudden, fortuitous

mischance, unexpected, out of the ordinary, and injurious in

impact" (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008]

[internal quotation marks and citations omitted]; see Matter of

Greco v DiNapoli, 123 AD3d 1366, 1367 [2014]). The burden is on

the party seeking benefits to establish that the injury producing

event was accidental (see Matter of Dicioccio v DiNapoli, 124

AD3d 1170, 1171 [2015]; Matter of Greco v DiNapoli, 123 AD3d at

1367). In order to be deemed accidental, an injury must not have

been "the result of activities undertaken in the ordinary course

of one's job duties" but, rather, "must be due to a precipitating

accidental event which is not a risk of the work performed"

(Matter of Pommerville v McCall, 6 AD3d 1025, 1026 [2004]; see

Matter of Fulton v New York State Comptroller, 122 AD3d 983, 983

[2014], lv denied 24 NY3d 915 [2015]). Furthermore, where the

incident involves a slip and fall, the determinative inquiry is

"whether the condition that caused the slip could have been

'reasonably anticipated'" (Matter of Sammon v DiNapoli, 97 AD3d

952, 953 [2012], quoting Matter of Murphy v New York State

Comptroller, 92 AD3d 1022, 1023 [2012]; see Matter of Dicioccio v

DiNapoli, 124 AD3d at 1171). 

Dealing first with the December 1, 2004 incident, which

occurred at approximately 4:00 a.m., petitioner had responded to

a security alarm and was inspecting the exterior of a building in

a light rain. He indicated that he had climbed up onto a

concrete loading dock to check an overhead door and was getting

ready to lower himself off of it when his foot slipped on the

edge, which had become icy, and he fell to the ground. Inasmuch

as petitioner could have reasonably foreseen that an elevated

concrete surface would be icy on a rainy winter night,

substantial evidence supports respondent's conclusion that the

December 1, 2004 incident was not an accident (see Matter of

Messina v New York State & Local Employees' Retirement Sys., 102
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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]). 

Turning to the May 3, 2011 incident, petitioner stated that

he and another officer had responded to a private residence where

a morbidly obese woman had fallen. The two officers attempted to

lift her to her feet, and petitioner injured his back when she

failed to assist them by moving her feet under her body. 

Petitioner indicated that he had responded to such calls for

assistance before and the associated risks were, therefore,

clearly a part of his routine job duties. In view of this, and

absent an unexpected event, substantial evidence also supports

respondent's conclusion that the May 3, 2011 incident was not an

accident (see Matter of Herlihy v DiNapoli, 75 AD3d 892, 893

[2010]; Matter of Lucian v McCall, 7 AD3d 905, 906 [2004]).

Garry, J.P., Rose and Lynch, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court