Matter of Ryan v. DiNapoli , 40 N.Y.S.3d 193 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: October 6, 2016                   522239
    ________________________________
    In the Matter of TERRY E. RYAN,
    Petitioner,
    v
    MEMORANDUM AND JUDGMENT
    THOMAS P. DiNAPOLI, as State
    Comptroller, et al.,
    Respondents.
    ________________________________
    Calendar Date:   September 16, 2016
    Before:   Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.
    __________
    Kevin P. Sheerin, Mineola, for petitioner.
    Eric T. Schneiderman, Attorney General, New York City
    (William E. Storrs of counsel), for respondents.
    __________
    Garry, 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 enhanced disability retirement
    benefits.
    Petitioner was employed as a highway maintenance worker for
    the New York State Department of Transportation. He sustained
    injuries in July 2007, March 2010 and July 2011 while performing
    his job duties. He filed an application for enhanced disability
    retirement benefits under Retirement and Social Security Law
    article 15 based on these three incidents. His application was
    initially denied on the ground that none of these incidents were
    accidents within the meaning of Retirement and Social Security
    -2-                522239
    Law § 605.1 Following a hearing, a Hearing Officer ruled, among
    other things, that the July 2011 incident did constitute an
    accident and remanded the matter to respondent New York State and
    Local Employees' Retirement System for further action on
    petitioner's application. Respondent Comptroller, however,
    overruled the Hearing Officer's decision, found that none of the
    incidents qualified as accidents and denied petitioner's
    application. This CPLR article 78 proceeding ensued.
    Initially, for purposes of the Retirement and Social
    Security Law, an accident has been defined as a "'sudden,
    fortuitous mischance, unexpected, out of the ordinary, and
    injurious in impact'" (Matter of Lichtenstein v Board of Trustees
    of Police Pension Fund of Police Dept. of City of N.Y., Art. II,
    57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v
    Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d
    222 [1959]; see Matter of Mace v DiNapoli, 137 AD3d 1448, 1449
    [2016]). Notably, injuries sustained while performing activities
    that are a regular and routine part of one's job duties have not
    been considered accidental (see Matter of Witts v DiNapoli, 137
    AD3d 1456, 1457 [2016]; Matter of Boncimino v New York State
    Comptroller, 125 AD3d 1089, 1090 [2015]) nor have injuries
    arising from risks that are an inherent aspect of a particular
    job (see Matter of Fulton v New York State Comptroller, 122 AD3d
    983, 983-984 [2014], lv denied 24 NY3d 915 [2015]; Matter of
    Forlano v McCall, 304 AD2d 970, 971 [2003]). Ultimately, the
    burden is on the party seeking benefits to demonstrate that the
    injury-producing event was an accident (see Matter of Schoales v
    DiNapoli, 132 AD3d 1184, 1185 [2015]; Matter of Begley v
    DiNapoli, 132 AD3d 1050, 1051 [2015]), and the Comptroller's
    determination in this regard will be upheld if supported by
    substantial evidence (see Matter of Mace v DiNapoli, 137 AD3d at
    1449; Matter of Beckley v Nitido, 123 AD3d 1330, 1331 [2014]).
    At the time of the July 2007 incident, petitioner was
    driving a truck in the yard to retrieve his tools. When he
    1
    Enhanced benefits are authorized by 2 NYCRR part 368 and
    the Older Workers' Benefit Protection Act (see 29 USC § 621-634
    [1990]; Pub L 101-433, 104 US Stat 978).
    -3-                522239
    stepped out of the truck cab, he stepped into a pot hole and
    fell, injuring his ankle. Although he stated that he did not see
    the pothole before he fell, he acknowledged that there were
    numerous potholes in the yard. At the time of the March 2010
    incident, petitioner and a coworker were carrying a ladder toward
    a hopper that was to be attached to a truck to salt the roads.
    It was raining outside and, when the coworker lost his grip on
    the ladder, the momentum caused petitioner to strike his left
    hand on the truck and injure his left wrist. Finally, at the
    time of the July 2011 incident, petitioner was working with a
    crane operator fixing a guardrail. When the guardrail was being
    hoisted overhead, petitioner stood up from the ground and struck
    his head, injuring his neck.
    Each of the incidents in question occurred while petitioner
    was performing his regular and routine job duties. As for the
    July 2007 incident, petitioner could have reasonably anticipated
    the pothole given the condition of the rest of the yard (see e.g.
    Matter of Yurko v DiNapoli, 122 AD3d 1047, 1048 [2014]).
    Likewise, considering that it was raining at the time of the
    March 2010 incident, he could also have reasonably anticipated
    that his coworker might lose his grip on the wet ladder, causing
    him to become unbalanced and to sustain injury (see e.g. Matter
    of Lamb v DiNapoli, 139 AD3d 1312, 1313-1314 [2016]; Matter of
    Schoales v DiNapoli, 132 AD3d at 1186). Lastly, although
    petitioner was evidently unaware of the suspended guardrail at
    the time of the July 2011 incident, we cannot find that its
    presence could not have been anticipated and, thus, striking it
    was an inherent risk of the type of work being performed (see
    e.g. Matter of Forlano v McCall, 304 AD2d at 971; Matter of
    Kordes v McCall, 293 AD2d 960, 961 [2002]). In view of the
    foregoing, we find that substantial evidence supports the
    Comptroller's determination.
    Peters, P.J., McCarthy, Clark and Aarons, JJ., concur.
    -4-                  522239
    ADJUDGED that the determination is confirmed, without
    costs, and petition dismissed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522239

Citation Numbers: 143 A.D.3d 1030, 40 N.Y.S.3d 193

Judges: Garry, Peters, McCarthy, Clark, Aarons, Adjudged

Filed Date: 10/6/2016

Precedential Status: Precedential

Modified Date: 11/1/2024