State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 18, 2014 518861 

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In the Matter of RONALD J.

BECKLEY,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS NITIDO, as Deputy State

Comptroller,

Respondent.

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Calendar Date: November 13, 2014

Before: Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

__________

Baker, Leshko, Saline & Blosser, LLP, White Plains (Anthony

C. Saline of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Arnold of counsel), for respondent.

__________

Peters, P.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 the Comptroller which denied

petitioner's application for accidental disability retirement

benefits.

Petitioner, a police officer, responded to a report of a

fight at a bar. After arriving at the scene, he observed a

vehicle coming toward him, with an individual on the hood of the

vehicle firing a gun into the vehicle's windshield. Petitioner

drew his weapon and fired a shot at the individual on the hood of

the vehicle as it passed him. The shot did not strike the
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individual, whom petitioner later discovered was a fellow police

officer. Petitioner thereafter filed an application for

accidental disability retirement benefits, claiming that he

suffers from posttraumatic stress disorder and high blood

pressure as a result of this incident, making him permanently

incapacitated from performing the duties of a police officer. 

The application was initially denied. Following a hearing, the

Hearing Officer also denied the application, finding that the

incident did not constitute an accident within the meaning of the

Retirement and Social Security Law. The Comptroller adopted the

Hearing Officer's finding and this CPLR article 78 proceeding

ensued. 

We confirm. "Petitioner bore the burden of proving

entitlement to accidental disability retirement benefits and the

Comptroller's determination will be upheld if supported by

substantial evidence" (Matter of Bleeker v New York State

Comptroller, 84 AD3d 1683, 1683 [2011], lv denied 17 NY3d 709

[2011] [citation omitted]; see Matter of Fiducia v DiNapoli, 111

AD3d 1018, 1018 [2013]). "To qualify as an accident, the

precipitating event must be a sudden, fortuitous mischance,

unexpected, out of the ordinary, and injurious in impact" (Matter

of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal

quotation marks and citations omitted]; see Matter of Cavallo v

DiNapoli, 117 AD3d 1366, 1367 [2014]). Significantly, the

Comptroller's determination "must be confirmed where the injury

was sustained during the performance of ordinary employment

duties and without the occurrence of an unexpected event" (Matter

of Bennett v DiNapoli, 119 AD3d 1310, 1311 [2014]; see Matter of

Quartucio v DiNapoli, 110 AD3d at 1337).

Petitioner testified that he had been trained as a police

officer to fire his gun when faced with a situation, such as the

one presented to him here, where he observed an individual using

deadly force against another individual. Inasmuch as the record

supports the Comptroller's determination that petitioner's

alleged injuries arose not from an unexpected event, but from

risks inherent in the performance of petitioner's job duties, it

will not be disturbed (see Matter of Berbenich v Regan, 81 AD2d

732, 732 [1981], affd 54 NY2d 792 [1981]). 
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Lahtinen, Garry, Rose and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court