Matter of Dicioccio v. DiNapoli , 3 N.Y.S.3d 162 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 518284
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In the Matter of RICHARD D.
DICIOCCIO,
Petitioner,
v MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as State
Comptroller,
Respondent.
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Calendar Date: December 16, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
__________
Bartlett, McDonough & Monaghan, LLP, White Plains,
(Patricia D'Alvia of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Paul
Groenwegen of counsel), for respondent.
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Lynch, 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 police officer, applied for accidental
disability retirement benefits alleging a permanent disability as
a result of injuries sustained to his left shoulder from
accidents occurring on December 3, 2007 and June 11, 2010.
Following a hearing, the Hearing Officer denied the application,
finding that the incidents did not constitute accidents within
the meaning of Retirement and Social Security Law § 363.
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Respondent adopted the decision of the Hearing Officer, prompting
petitioner to commence this CPLR article 78 proceeding.
In seeking accidental disability retirement benefits, the
petitioner bears the burden of establishing that the injuries
resulted from an accident, and respondent's determination will
not be disturbed if it is supported by substantial evidence (see
Matter of Shea v DiNapoli, 115 AD3d 1023, 1024 [2014]; Matter of
O'Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]). "For purposes of
accidental disability retirement benefits, the underlying
incident must be 'a sudden, fortuitous, out of the ordinary and
unexpected event that does not result from an activity undertaken
in the performance of regular or routine employment duties'"
(Matter of Murphy v New York State Comptroller, 92 AD3d 1022,
1022 [2012] [internal quotation marks and citations omitted]).
"With regard to slip and fall incidents, the question of whether
an accident occurred turns on whether the condition that caused
the slip could have been 'reasonably anticipated'" (Matter of
Sammon v DiNapoli, 97 AD3d 952, 953 [2012], quoting Matter of
Murphy v New York State Comptroller, 92 AD3d at 1023).
Here, with regard to the December 3, 2007 incident,
petitioner testified that he slipped on unseen ice in an
enclosed, dark alley when responding to a burglar alarm around
9:00 a.m. He acknowledged that the sky was grey, the temperature
was close to freezing and some snow was on the ground. Under
these circumstances, we find that petitioner could have
reasonably anticipated the icy conditions such that this incident
did not constitute an accident (see Matter of Shea v DiNapoli,
115 AD3d at 1024-1025; Matter of Kempkes v DiNapoli, 81 AD3d
1071, 1072 [2011]).
Nor are we persuaded that the June 11, 2010 incident
constitutes an accident. Petitioner testified that his left arm
was injured during a mandatory self-defense training session
provided by the employer when, according to petitioner, a fellow
officer became "a little overzealous" and used more strength than
usual when practicing a takedown procedure on him. The record
supports a finding that the manner in which petitioner was
injured "was a result of a training program constituting an
ordinary part of petitioner's job duties and the normal risks
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arising therefrom" (Matter of Felix v New York State Comptroller,
28 AD3d 993, 994 [2006]; see Matter of Hulse v DiNapoli, 70 AD3d
1235, 1236 [2010]). Inasmuch as substantial evidence supports
the determination that petitioner's injuries were not the result
of an accident, it will not be disturbed (see Matter of Shea v
DiNapoli, 115 AD3d at 1024; Matter of Quartucio v DiNapoli, 110
AD3d 1336, 1336 [2013]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court