IN RE: Application of Augustine SCIABARASSI (2002)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Augustine SCIABARASSI, Petitioner-Appellant, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents-Respondents.

Decided: October 31, 2002

MAZZARELLI, J.P., SAXE, ELLERIN, LERNER and MARLOW, JJ.

Jeffrey L. Goldberg, for Petitioner-Appellant. Deborah Rand, for Respondents-Respondents.

Judgment, Supreme Court, New York County (William Davis, J.), entered November 13, 2001, which denied the application and dismissed the petition brought pursuant to CPLR article 78 to annul respondent's determination denying petitioner accident disability retirement benefits, unanimously affirmed, without costs.

Inasmuch as petitioner, at the time of his fall on the roof of the Police Communications Building, was inspecting a radio tower in pursuance of his normal duties as Commanding Officer of the Police Department Communications Division, and the risk of tripping, as petitioner did, in a roof depression, was a foreseeable risk of that work, there exists no basis to disturb respondent Board's determination denying petitioner accident disability retirement benefits (see Matter of Kehoe v. City of New York, 81 N.Y.2d 815, 595 N.Y.S.2d 379, 611 N.E.2d 280).

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