State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518284 

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In the Matter of RICHARD D. 

DICIOCCIO, 

Petitioner, 

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State 

Comptroller, 

Respondent.

________________________________

Calendar Date: December 16, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

__________

Bartlett, McDonough & Monaghan, LLP, White Plains,

(Patricia D'Alvia of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Paul

Groenwegen of counsel), for respondent.

__________

Lynch, 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 which denied petitioner's

application for accidental disability retirement benefits. 

Petitioner, a police officer, applied for accidental

disability retirement benefits alleging a permanent disability as

a result of injuries sustained to his left shoulder from

accidents occurring on December 3, 2007 and June 11, 2010. 

Following a hearing, the Hearing Officer denied the application,

finding that the incidents did not constitute accidents within

the meaning of Retirement and Social Security Law § 363. 
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Respondent adopted the decision of the Hearing Officer, prompting

petitioner to commence this CPLR article 78 proceeding.

In seeking accidental disability retirement benefits, the

petitioner bears the burden of establishing that the injuries

resulted from an accident, and respondent's determination will

not be disturbed if it is supported by substantial evidence (see

Matter of Shea v DiNapoli, 115 AD3d 1023, 1024 [2014]; Matter of

O'Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]). "For purposes of

accidental disability retirement benefits, the underlying

incident 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 Murphy v New York State Comptroller, 92 AD3d 1022,

1022 [2012] [internal quotation marks and citations omitted]). 

"With regard to slip and fall incidents, the question of whether

an accident occurred turns on 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 at 1023). 

Here, with regard to the December 3, 2007 incident,

petitioner testified that he slipped on unseen ice in an

enclosed, dark alley when responding to a burglar alarm around

9:00 a.m. He acknowledged that the sky was grey, the temperature

was close to freezing and some snow was on the ground. Under

these circumstances, we find that petitioner could have

reasonably anticipated the icy conditions such that this incident

did not constitute an accident (see Matter of Shea v DiNapoli,

115 AD3d at 1024-1025; Matter of Kempkes v DiNapoli, 81 AD3d

1071, 1072 [2011]). 

Nor are we persuaded that the June 11, 2010 incident

constitutes an accident. Petitioner testified that his left arm

was injured during a mandatory self-defense training session

provided by the employer when, according to petitioner, a fellow

officer became "a little overzealous" and used more strength than

usual when practicing a takedown procedure on him. The record

supports a finding that the manner in which petitioner was

injured "was a result of a training program constituting an

ordinary part of petitioner's job duties and the normal risks
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arising therefrom" (Matter of Felix v New York State Comptroller,

28 AD3d 993, 994 [2006]; see Matter of Hulse v DiNapoli, 70 AD3d

1235, 1236 [2010]). Inasmuch as substantial evidence supports

the determination that petitioner's injuries were not the result

of an accident, it will not be disturbed (see Matter of Shea v

DiNapoli, 115 AD3d at 1024; Matter of Quartucio v DiNapoli, 110

AD3d 1336, 1336 [2013]).

Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court