State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522970 

________________________________

In the Matter of CLAUDINE T. 

ROSENBERGEN,

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 (Erin

O'Connor of counsel), for petitioner.

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

Goldfarb of counsel), for respondent.

__________

McCarthy, J.P.

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, a police officer, applied for accidental

disability retirement benefits following a December 12, 2010 slip

and fall. The fall occurred on the street after petitioner

exited a residence where she had been called to respond to a

domestic incident. Following a hearing, a Hearing Officer denied

the application on the ground that the incident did not

constitute an accident within the meaning of Retirement and
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Social Security Law § 363. Respondent adopted the Hearing

Officer's findings and conclusions, and petitioner thereafter

commenced 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]). As the party

seeking benefits, petitioner had the burden of establishing that

the injury-producing event was accidental and, "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] [internal quotation marks and citation

omitted]; see Matter of Scofield v DiNapoli, 125 AD3d 1086, 1086

[2015]). Importantly, "injuries incurred due to conditions that

are readily observable and could be reasonably anticipated, or

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

constitute accidents" (Matter of Lamb v DiNapoli, 139 AD3d 1312,

1313 [2016]).

Petitioner testified that, prior to responding to this 2:30

a.m. police call, she had notified headquarters that the roads

were icy and "treacherous." While en route, she observed

freezing rain and that the roads were "icing up" and were "very

bad," and noted that they were icy when she arrived. At the

residence, the driveway was icy. When she left about an hour

later, it was no longer raining and she walked down the driveway

without difficulty but fell on unseen ice at the bottom of the

driveway as she stepped into the street. Petitioner also

testified that it was part of her duties to respond to calls in

icy and rainy conditions. Under these circumstances, substantial

evidence supports respondent's determination that petitioner's

fall was not an accident, as it occurred while she was performing

the routine duties of her employment, and that the precipitating

event, the condition of the road in subfreezing conditions, could

have reasonably been anticipated (see Matter of Begley v

DiNapoli, 132 AD3d 1050, 1051 [2015]; Matter of Dicioccio v

DiNapoli, 124 AD3d 1170, 1171 [2015]; Matter of Shea v DiNapoli,
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115 AD3d 1023, 1024-1025 [2014]).

Egan Jr., Lynch, Clark and Aarons, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court