State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 6, 2014 518444 

________________________________

In the Matter of RAYMOND J.

FULTON,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE COMPTROLLER 

et al.,

Respondents.

________________________________

Calendar Date: September 11, 2014

Before: Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

__________

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

of counsel), for petitioner.

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

Storrs of counsel), for respondents.

__________

Lahtinen, 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 which denied

petitioner's application for accidental disability retirement

benefits.

Petitioner, a police officer, was on patrol on July 21,

2008 when he was called to a location where two men were fighting

in the street. When he arrived at the scene, one man was fleeing

and the other was standing in the middle of the street. As

petitioner got out of his car, the man in the street seemed

incoherent, started to approach him and indicated that he had to
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talk to petitioner. Petitioner directed the man to step off the

side of the road to get him out of the path of fast moving

vehicles, a situation that petitioner described as dangerous. 

During the process of attempting to get the man to a safe

location, the man proceeded to lunge at petitioner and a physical

altercation ensued resulting in injuries to petitioner's left

shoulder and neck. Petitioner filed an application for

accidental disability retirement benefits claiming that he was

assaulted (see Matter of Stefanelli, Mar. 11, 2002, Reg. No.

3344419-1, H.C. No. 01-0237). His application was denied. 

Following a hearing, a Hearing Officer concluded that the denial

of benefits was proper because the incident did not constitute an

accident within the meaning of the Retirement and Social Security

Law. Respondent Comptroller upheld this determination and

petitioner commenced this CPLR article 78 proceeding challenging

it.

The primary issue before us is whether the July 21, 2008

incident was an accident within the meaning of the Retirement and

Social Security Law. Petitioner bears the burden of

demonstrating that his injuries were the result of an accident,

"meaning, that they were caused by a sudden and extraordinary

event that is unrelated to the ordinary risks of employment"

(Matter of Jarosz v DiNapoli, 95 AD3d 1500, 1500-1501 [2012],

[internal quotation marks and citations omitted]; see Matter of

Del Salto v DiNapoli, 115 AD3d 1147, 1148 [2014]). 

Significantly, "the event must arise from risks that are not

inherent to petitioner's regular employment duties" (Matter of

Roberts v DiNapoli, 117 AD3d 1166, 1166 [2014]; see Matter of

Wise v New York State Comptroller, 38 AD3d 1032, 1033-1034

[2007], lv denied 9 NY3d 811 [2007]). Here, petitioner's regular

duties as a police officer included responding to a call that two

men were engaged in a street fight and attempting to remove one

of the men, who was "a little incoherent with alcohol," from the

roadway where his safety was threatened. The risks taken by

petitioner in performing his duty and being drawn into a physical

confrontation with this intoxicated person were an inherent part

of his duties. Consequently, we find that substantial evidence

supports the Comptroller's determination that the incident did

not qualify as an accident entitling petitioner to receive

accidental disability retirement benefits (see Matter of Roberts
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v DiNapoli, 117 AD3d at 1166-1167; Matter of Del Salto v

DiNapoli, 115 AD3d at 1148-1149; Matter of Jarosz v DiNapoli, 95

AD3d at 1501). Although it could be inferred from the evidence

that petitioner was assaulted during the physical confrontation,

this does not negate the Comptroller's finding that he was

injured as a result of physical contact inherent in his routine

job duties (see Matter of Rodriquez v DiNapoli, 110 AD3d 1125,

1127 [2013]; Matter of Welsh v New York State Comptroller, 67

AD3d 1167, 1169 [2009], lv denied 14 NY3d 706 [2010]; Matter of

Wise v New York State Comptroller, 38 AD3d at 1034). We have

considered petitioner's remaining contentions and find them to be

unavailing.

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

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court