State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522941 

________________________________

In the Matter of TIMOTHY 

POWERS, 

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State 

Comptroller,

Respondent.

________________________________

Calendar Date: October 18, 2016

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

__________

Bartlett, McDonough & Monaghan, LLP, White Plains (Jason D.

Lewis 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 firefighter for over 20 years. In

March 2012, while moving heavy firefighting equipment, petitioner

tripped and fell sustaining injuries to his head and back when he

hit the ground. Thereafter, he filed an application for

accidental disability retirement benefits based upon this

incident. The application was denied, and, following a hearing,

a Hearing Officer upheld the denial of the application upon the
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ground that the incident did not constitute an accident within

the meaning of Retirement and Social Security Law § 363. 

Respondent adopted the Hearing Officer's findings and

conclusions, prompting petitioner to commence this CPLR article

78 proceeding.

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 citation omitted]). 

"Significantly, it must result from an activity that is not

undertaken in the performance of ordinary job duties and that is

not an inherent risk of such job duties" (Matter of Sica v

DiNapoli, 141 AD3d 799, 799 [2016] [internal quotation marks and

citations omitted]; see Matter of Kenny v DiNapoli, 11 NY3d at

874). Injuries sustained due to conditions that are readily

observable and that could be reasonably anticipated, or

attributable to an employee's own misstep or inattention, do not

constitute accidents within the context of the Retirement and

Social Security Law (see Matter of Lamb v DiNapoli, 139 AD3d

1312, 1313 [2016]; Matter of Holden v DiNapoli, 122 AD3d 1105,

1106, [2014]). As the party seeking benefits, petitioner bears

the burden of establishing that the event producing the injury

was an accident, and respondent's determination will be upheld

where it is supported by substantial evidence (see Matter of Lamb

v DiNapoli, 139 AD3d at 1313; Matter of Dicioccio v DiNapoli, 124

AD3d 1170, 1171 [2015]), a standard that "demands only that a

given inference is reasonable and plausible, not necessarily the

most probable" (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d

494, 499 [2011]). 

Petitioner testified that, on the day of the incident,

there was light rainfall when he was transferring about 20 pieces

of firefighting equipment from a firetruck that was being

repaired to a spare firetruck. To facilitate this task, the

trucks were parked on an asphalt parking lot approximately four

to five feet apart from each other. After moving equipment to

the spare truck for about 10 minutes, petitioner picked up a

Lukas tool, commonly known as the "jaws of life," which weighed

approximately 70 to 75 pounds. Petitioner explained that, as he
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walked sideways with this equipment towards the spare truck, he

tripped and fell, after which he observed a one-foot long crack

in the pavement that was broken into one to one-half inch

fragments that he had not seen prior to his fall. One of

petitioner's colleagues who was assisting him with the transfer

of equipment and who witnessed the incident also testified that

they were not previously warned about the condition of the

pavement. Nevertheless, under the circumstances presented here,

the incident occurred during petitioner's performance of routine

and regular duties as a firefighter, which he had performed

numerous times, and the hazard encountered by petitioner was

readily observable and one that could have been reasonably

anticipated (see Matter of Holden v DiNapoli, 122 AD3d at 1107;

Matter of DiGiacomo v DiNapoli, 115 AD3d 1138, 1139 [2014];

Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1338 [2013]). 

Accordingly, we discern no basis to disturb respondent's finding

that petitioner's fall resulted from his own inattention and

misstep and that the incident did not constitute an accident

within the meaning of the Retirement and Social Security Law (see

Matter of Lamb v DiNapoli, 139 AD3d at 1313-1314; Matter of

Schoales v DiNapoli, 132 AD3d 1184, 1186 [2015]). 

Peters, P.J., Garry, Devine and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court