Hendrick v Sewell

2024 NY Slip Op 30762(U)

March 11, 2024

Supreme Court, New York County

Docket Number: Index No. 152569/2022

Judge: Arlene P. Bluth

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publication.
152569/2022 HENDRICK, TYLER vs. SEWELL, KEECHANT ET AL

Motion No. 001

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 3, 4, 5, 6, 15, 16, 

17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37

were read on this motion to/for ARTICLE 78 .

The petition to annul respondents’ determination that petitioner is not entitled to Accident 

Disability Retirement (“ADR”) is denied.

Background

Petitioner began working for the NYPD in 2007. He claims that on February 29, 2020 

while working as a police officer, he suffered a serious wrist injury after responding to a 911 

call. He insists that he slipped while stepping into his police SUV. Petitioner stepped up to open 

the passenger side door of the SUV and then stepped down with his right foot (apparently, a 

person getting into this car has to step up to open the door and then step back down, only to step 

back up to finally get into the car). Petitioner alleges that when he stepped down, he landed on 

bagged ice that was spilled in the roadway and was in between his vehicle and the sidewalk, 

1 The Court recognizes that this proceeding has been pending for a long time before different judges. Although this 

proceeding was only assigned to this part on March 4, 2024, the Court apologizes, on behalf of the court system, for 

the lengthy delay in the resolution of the instant petition. 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14

Justice 

---------------------------------------------------------------------------------X INDEX NO. 152569/2022

 MOTION DATE 03/04/20241

 MOTION SEQ. NO. 001

DECISION + ORDER ON 

MOTION

TYLER HENDRICK,

 Petitioner, 

- v -

KEECHANT SEWELL, THE BOARD OF TRUSTEES OF 

THE POLICE PENSION FUND, ARTICLE II, NEW YORK 

CITY POLICE DEPARTMENT, THE CITY OF NEW YORK

 Respondent. 

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152569/2022 HENDRICK, TYLER vs. SEWELL, KEECHANT ET AL

Motion No. 001

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which caused him to reach for door handle of the car and injure his wrist. He contends that the 

injury to his wrist required surgery, which he underwent in July 2020. 

In January 2021, he applied for ADR. The Medical Board, in a decision dated July 9,

2021, approved his request for ADR (NYSCEF Doc. No. 11). The matter then went before the 

Board of Trustees of the Police Pension Fund (the “Board of Trustees”) in November 2021, 

which tabled the matter (NYSCEF Doc. No. 12). At an executive session in December 2021, the 

Board of Trustees again tabled the matter after discussing whether or not the incident was 

unexpected (NYSCEF Doc. No. 13). At the next session on January 12, 2022, the Board of 

Trustees finally voted and the result was a 6-6 tie, meaning that petitioner received only Ordinary 

Disability Retirement (“ODR”) (NYSCEF Doc. No. 14). 

A member of the voting bloc who voted for ODR, noted that “we remain unconvinced 

that this was not an open and obvious condition and that this was sudden given that they got out 

of the vehicle and it was pretty obvious” (id. at 16 of 17). 

Petitioner admits that is unknown whether or not the ice was there when he responded to 

the incident; petitioner was directed to go to a Taco Bell to address a call about a disruptive 

individual. He claims that a police officer need not be aware of every possible nuisance or 

defective condition while responding to an emergency. 

In opposition, respondents contend that the issue here is whether the injury was 

“accidental.” They acknowledge that the Medical Board granted petitioner ADR but claims that 

the Board of Trustees rationally found that the disabling injury was not the result of an 

unexpected event. Respondents emphasize that this was an open and obvious condition that 

petitioner failed to observe. 

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Discussion

In an article 78 proceeding, “the issue is whether the action taken had a rational basis and 

was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d 

587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious 

when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination 

has a rational basis, it will be sustained, even if a different result would not be unreasonable” 

(id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to 

the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale 

& Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]). 

“Applying for ADR involves a two step process. Initially, the pension fund’s Medical 

Board conducts a physical examination, interviews the applicant, and reviews the submitted 

evidence, before submitting a recommendation to the Board of Trustees. In the second step, the 

Board of Trustees votes to either grant or deny ADR benefits” (Stavropoulos v Bratton, 148 

AD3d 449, 450, 50 NYS3d 2 [1st Dept 2017]). 

“Not every line of duty injury will result in an award of ADR. When the denial of ADR 

benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is 

required to uphold the denial unless it can be determined as a matter of law on the record that the 

disability was the natural and proximate result of a service-related accident” (Pastalove v Kelly, 

120 AD3d 419, 420, 991 NYS2d 39 [1st Dept 2014] [internal quotations and citations omitted]). 

As the parties make clear, this is not a situation in which there is a dispute about the 

cause of petitioner’s disabling injury. Rather, the primary issue here is where the incident in 

question was an accident for purposes of an ADR application. “In the context of ADR benefits, 

the Court of Appeals has defined an accident as a sudden, fortuitous mischance, unexpected, out 

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of the ordinary, and injurious in impact, while an injury which occurs without an unexpected 

event as the result of activity undertaken in the performance of ordinary employment duties, 

considered in view of the particular employment in question, is not an accidental injury” (id.).

The Court denies the petition as the Board of Trustees rationally concluded that 

petitioner’s injury was not caused by a sudden or unexpected event. Not every on-the-job injury 

qualifies for ADR. The Appellate Division, First Department has found that a police officer who 

injured his knee while stepping out of his patrol car was not an accident for purposes of granting 

ADR (Gray v Kerik, 15 AD3d 275, 791 NYS2d 9 [1st Dept 2005]). And, of course, responding 

to a 911 call is a normal risk inherent in police work (Pastalove, 120 AD3d at 421). 

And, here, the fact is that the Board of Trustees concluded that the condition that caused 

petitioner’s incident was open and obvious such that petitioner had ample opportunity to see and 

avoid the ice. The Court observes that the Third Department2has found that an officer who 

slipped and fell on ice was not entitled to receive ADR, even though he claimed not to see it 

before he fell (Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283, 924 NYS2d 221 [3d Dept 

2011]). It also found that a firefighter who slipped on ice that formed while he was fighting a fire 

did not constitute an accident for ADR purposes (Matter of Campbell v DiNapoli, 56 AD3d 940, 

941, 867 NYS2d 650 [3d Dept 2008]). The key factor for this Court is that the precipitating 

cause of the incident was not sudden or unexpected; that petitioner contends he did not notice the 

ice laying on the ground does not make it an accident for purposes of ADR.

2 The Court recognizes that the procedural posture of that case in the Third Department is a bit different as it 

involved a question of substantial evidence after a hearing, whereas no such hearing was held in connection with this 

type of ADR application. 

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Summary

This Court emphasizes that it cannot disturb the Board of Trustees’ decision simply 

because it disagrees with the Board of Trustees. Rather, in order to be irrational, the record must 

show as a matter of law that this was a service-related accident and here, the record does not 

show that. While it is completely understandable that petitioner disagrees with the Board of 

Trustee’s determination via their 6-6 tie vote, the Court sees no basis to disturb that conclusion 

on this record. 

Accordingly, it is hereby

ADJUDGED that the petition is denied and this proceeding is dismissed without costs or 

disbursements. 

 

3/11/2024 $SIG$

DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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