State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 17, 2016 521603 

________________________________

In the Matter of GARY G. 

SCHULTZ,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as 

Comptroller of the State of

New York, et al.,

Respondents.

________________________________

Calendar Date: February 10, 2016

Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.

__________

Flaherty & Shea, Buffalo (James P. Shea of counsel), for

petitioner.

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

Storrs of counsel), for respondents.

__________

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 respondent Comptroller denying

petitioner's application for accidental disability retirement

benefits.

Petitioner worked as a firefighter for the City of Buffalo

Fire Department for approximately 18 years. On June 2, 2008, he

was injured when he inhaled toxic fumes while fighting a fire at

a pool warehouse where hazardous chemicals were stored. 

Thereafter, he filed an application for accidental disability
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retirement benefits based upon this incident as well as another

that occurred on February 26, 2013. His application was denied

on the ground that the incidents in question did not constitute

accidents within the meaning of Retirement and Social Security

Law § 363. Petitioner requested a hearing and redetermination

and later withdrew his application with respect to the February

26, 2013 incident. At the conclusion of the hearing, the Hearing

Officer found that the June 2, 2008 incident constituted an

accident entitling him to accidental disability retirement

benefits. Respondent Comptroller, however, disagreed and denied

petitioner's application. This CPLR article 78 proceeding

ensued.

We confirm. It is well settled that in order for an

incident to constitute an accident within the meaning of the

Retirement and Social Security Law, it must be a "'sudden,

fortuitous mischance, unexpected, out of the ordinary, and

injurious in impact'" (Matter of Lichtenstein v Board of Trustees

of Police Pension Fund of Police Dept. of City of N.Y., Art. II,

57 NY2d 1010, 1012 [1982], quoting Johnson Corp. v Indemnity Ins.

Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; see

Matter of Stimpson v Hevesi, 38 AD3d 979, 980 [2007]). 

Significantly, it must result from an activity that is not

undertaken in the performance of ordinary job duties (see Matter

of Baron v DiNapoli, 57 AD3d 1202, 1203 [2008]; Matter of Pryor v

Hevesi, 14 AD3d 776, 776 [2005]) and that is not an inherent risk

of such job duties (see Matter of Walion v New York State & Local

Police & Fire Retirement Sys., 118 AD3d 1215, 1215-1216 [2014];

Matter of Carrella v DiNapoli, 98 AD3d 1220, 1221 [2012]). 

Notably, the burden is on the petitioner to demonstrate that the

precipitating event constituted an accident, and the

Comptroller's determination in this regard will be upheld if

supported by substantial evidence (see Matter of Walion v New

York State & Local Police & Fire Retirement Sys, 118 AD3d at

1215; Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428 [2013]).

Here, petitioner contends that the injuries he sustained in

the June 2, 2008 warehouse fire were the result of an accident 

because the sprinkler system was not operating properly, the

proper protocol for fighting fires involving hazardous materials

was not followed and the owner of the warehouse building failed
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to obtain the proper license to store dangerous chemicals. These

factors, however, do not transform the incident in question into

an accident within the meaning of the Retirement and Social

Security Law. Petitioner's injuries were the direct result of

his inhalation of smoke and fumes that occurred, as he conceded,

while performing his ordinary firefighting duties.1 Indeed,

cases involving similar applications for accidental disability

retirement benefits have held that exposure to toxic fumes while

fighting fires is an inherent risk of a firefighter's regular

duties (see Matter of Huether v Regan, 155 AD2d 860, 861 [1989],

lv denied 75 NY2d 705 [1990]; Matter of Daly v Regan, 97 AD2d

575, 576 [1983], lv denied 61 NY2d 602 [1984]). Therefore,

substantial evidence supports the Comptroller's determination

that the June 2, 2008 incident did not constitute an accident

within the meaning of Retirement and Social Security Law § 363.

Petitioner's remaining contentions are without merit.

Garry, Rose, Devine and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 We note that petitioner had previous experience combating

fires involving hazardous materials and was aware that the

warehouse contained pool chemicals.