State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 31, 2014 517958 

________________________________

In the Matter of DENNIS C. 

BENNETT,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as 

State Comptroller,

Respondent.

________________________________

Calendar Date: June 4, 2014

Before: Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

__________

Raymond G. Lavallee, Esq., PC, Farmingdale (Rosanna A.

Franzi of counsel), for petitioner.

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

Storrs of counsel), for respondent.

__________

Peters, P.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 which denied petitioner's

application for accidental disability retirement benefits.

Petitioner, a member of the crime prevention unit of the

Nassau County Police Department, was conducting a late night

narcotics investigation in April 2010 when a suspect vehicle fled

from the location at issue. During the high-speed chase that

ensued, the suspect vehicle traversed a road divider, causing the

rear of the vehicle to raise up and slam onto the ground, and the

vehicle then crashed into a fence and came to rest in the
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roadway. The suspect then fled on foot and, after petitioner

stopped his vehicle, he alit and gave chase. Petitioner

testified that he caught the suspect and a scuffle ensued, during

which he felt his feet slide out from beneath him and he went

down to the ground. When emergency vehicles arrived and

illuminated the scene, petitioner observed that the roadway was

covered with a fresh coat of shiny liquid, which contained

footprints leading from his police vehicle to the site of the

altercation. As the result of his injuries, petitioner filed an

application for accidental disability retirement benefits, which

was ultimately denied by respondent based upon a determination

that petitioner had offered no evidence that he stepped into the

liquid or that it caused him to fall and, therefore, the April

2010 incident did not constitute an accident within the purview

of Retirement and Social Security Law § 363. Petitioner then

commenced this CPLR article 78 proceeding and we now confirm.

Petitioner bears the burden of proving entitlement to

accidental disability retirement benefits and a determination by

respondent will be upheld when supported by substantial evidence

(see Matter of Fiducia v DiNapoli, 111 AD3d 1018, 1018 [2013];

Matter of Carpenter v DiNapoli, 104 AD3d 1037, 1038 [2013]). 

Entitlement to such benefits depends upon a demonstration that

the underlying incident was "a sudden, fortuitous mischance,

unexpected, out of the ordinary, and injurious in impact" (Matter

of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal

quotation marks and citations omitted]; see Matter of Rodriquez v

DiNapoli, 110 AD3d 1125, 1126 [2013]). 

Initially, while respondent is entrusted with the authority

to resolve credibility issues (see Matter of Messina v New York

State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069

[2013], lv denied 21 NY3d 855 [2013]; Matter of Cooke v DiNapoli,

96 AD3d 1340, 1341 [2012]), we disagree with the determination

here that petitioner offered no evidence that he stepped in the

liquid. While there was evidence in the record that might

suggest that the liquid was not the cause of petitioner's fall,

he did testify that the footprints leading from his car to the

incident site made him realize that he had run through the liquid

and he later stated unequivocally that he slipped on the liquid.
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Nevertheless, the determination must be confirmed where the

injury was sustained during the performance of ordinary

employment duties and without the occurrence of an unexpected

event (see Matter of Pufahl v Murray, 111 AD3d 1050, 1051 [2013];

Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428 [2013]). Both

petitioner and his partner testified that chasing suspects was

within their job duties and that, following a vehicle accident,

there could be substances in the roadway. Accordingly, the

hazard was one that petitioner reasonably could have anticipated,

even if he did not see it until after his fall. We therefore

find no basis upon which to disturb respondent's determination

that petitioner did not establish his entitlement to accidental

disability retirement benefits (see Matter of Quartucio v

DiNapoli, 110 AD3d at 1337; Matter of Bleeker v New York State

Comptroller, 84 AD3d 1683, 1683-1684 [2011], lv denied 17 NY3d

709 [2011]).

Stein, Rose, Egan Jr. and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court