Matter of Rosenbergen v. DiNapoli , 42 N.Y.S.3d 368 ( 2016 )

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
-2- 522970
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,
-3- 522970
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