State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522576 

________________________________

In the Matter of ROBERT W.

KOWAL,

Petitioner,

v

MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller, et al.,

Respondents.

________________________________

Calendar Date: September 15, 2016

Before: Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

__________

Edelstein & Grossman, New York City (Jonathan I. Edelstein

of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Kate H.

Nepveu of counsel), for respondents.

__________

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 Comptroller denying

petitioner's application for accidental disability retirement

benefits.

Petitioner, a court officer for approximately 15 years, was

assigned to work at the Middletown City Court. On one morning in

February 2012, petitioner, who had the rank of court officer

sergeant, was working in the lobby by the X-ray machine and

magnetometer assisting two other court officers with the security

screening process for those individuals seeking entry into the
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courthouse. Approximately 40 people were in the general area

when petitioner heard a fellow court officer yell "gun." 

Petitioner testified that he observed an individual outside

holding a shotgun. The individual crouched down, "blasted

through the [glass-entry] door" with the shotgun and then fired

two more shots. Petitioner, who was approximately 15 feet away

from the assailant, responded by firing at him with his workissued firearm. Petitioner shot the assailant, who went down and

subsequently died. A search of the assailant revealed that he

was carrying an additional 40 shotgun shells.

Petitioner was subsequently diagnosed with posttraumatic

stress disorder. In June 2013, petitioner filed an application

for accidental disability retirement benefits stemming from the

February 2012 courthouse shooting. The application was denied on

the basis that the incident did not constitute an accident within

the meaning of Retirement and Social Security Law § 605-a. 

Respondent Comptroller upheld the denial of petitioner's

application and this CPLR article 78 proceeding ensued. We

confirm.

It is well settled that for purposes of the Retirement and

Social Security Law, an accident is "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 citations omitted]; see Matter of

Witts v DiNapoli, 137 AD3d 1456, 1457 [2016]; Matter of Roberts v

DiNapoli, 117 AD3d 1166, 1166 [2014]; Matter of Rykala v New York

State Comptroller, 92 AD3d 1077, 1077 [2012]). "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 Schultz v DiNapoli, 137 AD3d

1454, 1455 [2016] [citations omitted]; see Matter of Fulton v New

York State Comptroller, 122 AD3d 983, 983-984 [2014], lv denied

24 NY3d 915 [2015]; Matter of Jarosz v DiNapoli, 95 AD3d 1500,

1501 [2012]; Matter of Murray v New York State Comptroller, 84

AD3d 1681, 1682 [2011]), nor can it stem from hazards that may be

reasonably anticipated (see Matter of Cavallo v DiNapoli, 117

AD3d 1366, 1367 [2014]). Petitioner bears the burden of

establishing that the event producing the injury was an accident

(see Matter of Magistro v DiNapoli, 142 AD3d 750, 751 [2016];
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Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185 [2015]), and

the Comptroller's determination will be upheld where it is

supported by substantial evidence (see Matter of Greco v

DiNapoli, 123 AD3d 1366, 1367 [2014]; Matter of Del Salto v

DiNapoli, 115 AD3d 1147, 1149 [2014]).

There is no question that petitioner's heroic efforts saved

many lives on the morning in question, and he is to be commended

for his service in the protection of others. There is also no

question, however, that – based upon a review of petitioner's job

description and testimony – petitioner was injured during the

course of executing the very duties that he had been assigned to

perform and in the context of responding to a risk that was both

reasonably foreseeable and, more to the point, inherent in the

execution of his regular duties. The record evidence discloses

that petitioner, as a court officer, was "responsible for the

safety and well-being of all persons on the premises of the

courthouse." In furtherance of maintaining such safety and wellbeing, petitioner's job duties and responsibilities included,

among other things, providing security and assistance throughout

the courthouse and assuming appropriate responsibilities in

emergency situations, which can involve controlling, restraining

or removing disruptive individuals. Petitioner's job description

required that he have knowledge of the use-of-force guidelines,

facility lock-down and building evacuation procedures, the

"[a]bility to handle conflict situations" and "procedures for

handling emergency responses in situations such as fires, aided

cases . . ., bomb threats, hostage situations, crowd control, and

hazardous materials." Petitioner was also required to have

"[k]nowledge of rules and procedures for possession, control,

use, registration, inspection and safeguarding of firearms." 

While petitioner claims that he was not trained to address

the specific attack forming the basis of his petition, he, as the

dissent recognizes, received training on the use of his firearm

and had knowledge of the circumstances in which he could

discharge his firearm and resort to deadly force (see Matter of

Beckley v Nitido, 123 AD3d 1330, 1331 [2014]). Indeed,

petitioner testified that court officers are required to carry

loaded firearms in order "[t]o perform our duties, to protect

ourselves and the public . . .. It's also a deterrent for
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someone." In view of the foregoing, we conclude that

petitioner's actions in response to the assailant's shots were in

furtherance of his responsibility to safeguard and protect the

individuals in the courthouse and not inconsistent with his court

officer duties, training and obligations. Accordingly, the

Comptroller's determination that petitioner's injury did not

arise from an accident within the meaning of Retirement and

Social Security Law § 605-a is supported by substantial evidence

(see Matter of Kilbride v New York State Comptroller, 95 AD3d

1496, 1496-1497 [2012], lv denied 19 NY3d 813 [2012]; Matter of

Rykala v New York State Comptroller, 92 AD3d at 1078; Matter of

Silver–Smith v New York State & Local Retirement Sys., 298 AD2d

696, 697 [2002]). 

Furthermore, while there is no question that petitioner was

within the assailant's line of fire, and, in fact, the shots came

"within inches" of petitioner, nothing in the record suggests

that he was any more of a target – or was in any greater danger –

than the other people in the immediate vicinity. In our view,

the approximately 40 people in the general area, including the

half-dozen people on the security line waiting to pass through

the magnetometer, were, as the dissent describes, all

"immediately in harm's way." For these reasons, we cannot

subscribe to the dissent's characterization that petitioner was a

victim of an assault. The record reveals that, upon hearing his

fellow court officer yell "gun," petitioner saw the assailant

crouch down and fire a shot first through the glass-entry door

and then fire additional shots without regard to who or what

stood in his way to effectuate his ill deed. In response to his

observation of the assailant, petitioner quickly returned fire

and saved innocent lives by doing what he was trained and

required to do as a court officer. Indeed, the threat of an

armed attack is undoubtedly one of the many reasons the Unified

Court System employs court officers and utilizes securityscreening procedures. The execution of petitioner's duties to

protect those individuals placed in immediate harm by a gunman,

whether they were other court officers, judges, attorneys,

civilians or prisoners awaiting their court-scheduled appearance,

is not without peril and comes with the unfortunate, but

inherent, risk of being shot at by a gunman (see Matter of

Beckley v Nitido, 123 AD3d at 1331). As such, even though the
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record contains proof from which it could be concluded that

petitioner was injured as the result of an assault, this does not

negate the Comptroller's finding that petitioner was injured

during the course of the performance and execution of his job

duties (see Matter of Emerson v DiNapoli, 115 AD3d 1145, 1145-

1146 [2014]; Matter of Kilbride v New York State Comptroller, 95

AD3d at 1497; Matter of Wise v New York State Comptroller, 38

AD3d 1032, 1034 [2007], lv denied 9 NY3d 811 [2007]; Matter of

Ammann v New York State Comptroller, 13 AD3d 858, 859 [2004], lv

denied 5 NY3d 702 [2005]). 

Peters, P.J., Egan Jr. and Rose, JJ. concur.

Lynch, J. (dissenting).

I respectfully dissent. As respondents acknowledge in

their brief, and as this Court has previously explained,

"[respondent] Comptroller draws a distinction between injuries

received by a court officer as the result of an assault and

injuries received as the result of an attempt to restrain a

disruptive individual while performing the duties of a court

officer. According to the Comptroller, the former constitutes a

compensable accident, while the latter constitutes a risk

inherent in the course of the court officer's employment" (Matter

of Ammann v New York State Comptroller, 13 AD3d 858, 858 [2004],

lv denied 5 NY3d 702 [2005]). As respondents further point out,

we have upheld the Comptroller's determinations in a line of

cases concluding that injuries sustained by court officers while

attempting to restrain or remove disruptive individuals are not

"accidental" in nature, but inherent in the routine performance

of their duties (see Matter of Boncimino v New York State

Comptroller, 125 AD3d 1089, 1090 [2015]; Matter of Roberts v

DiNapoli, 117 AD3d 1166, 1166-1167 [2014]; Matter of Emerson v

DiNapoli, 115 AD3d 1145, 1145-1146 [2014]; Matter of Kilbride v

New York State Comptroller, 95 AD3d 1496, 1496-1497 [2012], lv

denied 19 NY3d 813 [2012]; Matter of Rykala v New York State

Comptroller, 92 AD3d 1077, 1077-1078 [2012]; Matter of Ammann v

New York State Comptroller, 13 AD3d at 858-859). 
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The evidence establishes that petitioner's job duties and

responsibilities required him to provide for the security and

safety of the courthouse occupants, to restrain or remove

disruptive individuals and to respond to emergency situations. 

Further, petitioner was trained in the use of a weapon and useof-force guidelines, including deadly physical force. An

assessment of petitioner's job description, however, does not

conclude the analysis, for we must account for "the precipitating

cause of injury" (Matter of McCambridge v McGuire, 62 NY2d 563,

567 [1984]; see Matter of Sica v DiNapoli, 141 AD3d 799, 800-801

[2016]).

Without question, the precipitating event here was

extraordinary. Petitioner commendably acted within his job

description, training and instinct, but there is nothing routine

about this event (see Matter of Cantone v McCall, 289 AD2d 863,

864 [2001]). Petitioner testified that, after hearing a fellow

officer yell "gun," he observed the assailant crouch down at the

glass-entry door and fire the shotgun, blasting a hole through

the door. As to the shooting sequence, petitioner testified that

"[h]e fired. I fired. He fired. I fired." Petitioner

explained that the shotgun pellets came "within inches" of

striking him and actually struck a fellow court officer. In my

view, the distinctive, controlling factor here is that the

assailant initiated the unprovoked attack, firing shots directly

at petitioner and others in the lobby area. This precipitating

act constitutes an assault against petitioner and, thus,

qualifies as an accident within the embrace of Retirement and

Social Security Law § 605-a. The three cases relied upon by the

Hearing Officer to conclude that the shooting of an individual by

a police officer in the line of duty is not an accident – Matter

of Berbenich v Regan (81 AD2d 732 [1981]), Matter of Taylor v

Regan (103 AD2d 884 [1984]) and Matter of Beckley v Nitido (123

AD3d 1330 [2014]) – are all distinguishable by the determinative

fact that petitioner, himself, was one of the targets of the

assailant's gunfire and immediately in harm's way. 

In my view, the Comptroller's determination that the

February 2012 incident did not constitute an accident within the

meaning of Retirement and Social Security Law § 605-a is not

supported by substantial evidence in this record. As such, I
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would annul the determination and remit the matter to the

Comptroller for further proceedings on the application. 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court