State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 523087 

________________________________

In the Matter of MARK J. BUONO 

SR.,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller,

Respondent.

________________________________

Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan K.

Allen of counsel), for petitioner.

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

Storrs of counsel), for respondent.

__________

Aarons, 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 officer for 15 years. On

April 19, 2012, he was placing a suspect, who had been

handcuffed, into the rear seat of the patrol vehicle when the

suspect pulled away causing petitioner to be drawn toward the

vehicle, to strike his neck and right shoulder on the door jamb,

and to sustain injury. As a result of this incident, he filed an

application for accidental disability retirement benefits. The
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application was denied by the New York State and Local Police and

Fire Retirement System on the ground that the incident did not

constitute an accident within the meaning of Retirement and

Social Security Law § 363. Petitioner requested a hearing and,

at its conclusion, the Hearing Officer denied the application for

the same reason. Respondent adopted the Hearing Officer's

decision and this CPLR article 78 proceeding ensued. 

We confirm. It is well settled that an accident, for

purposes of the Retirement and Social Security Law, is "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 citation omitted]; see

Matter of Beckley v Nitido, 123 AD3d 1330, 1331 [2014]). The

party seeking benefits bears the burden of establishing that the

injury-producing event was accidental (see Matter of Lamb v

DiNapoli, 139 AD3d 1312, 1313 [2016]; Matter of Scofield v

DiNapoli, 125 AD3d 1086, 1087 [2015]). Significantly, "[i]n

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 Schoales v DiNapoli, 132 AD3d 1184, 1185 [2015],

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

see Matter of Lamb v DiNapoli, 139 AD3d at 1313).

Here, petitioner was performing a routine duty of his job

when he responded to his fellow officer's request for assistance

in placing the suspect, for whom there was a warrant outstanding,

under arrest. He had a hold of the suspect and was in the

process of guiding him into the back seat of the patrol vehicle,

an activity that he had performed before and for which he had a

specific protocol, when the suspect pulled away. Although

petitioner did not anticipate this movement by the suspect, this

does not render the incident accidental. Considering that the

suspect had violently resisted arrest and was clearly agitated,

it could be reasonably expected that he would not be cooperative

in getting into the vehicle. Accordingly, inasmuch as

petitioner's injury arose from an inherent risk of his job,

substantial evidence supports the determination denying his

application for accidental disability retirement benefits (see
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e.g. Matter of Beckley v Nitido, 123 AD3d at 1331; Matter of

Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of Hunce

v DiNapoli, 106 AD3d 1427, 1428-1429 [2013]).

McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court