IN RE: Wayne BUTLER (1998)

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 was employed by the Orange County Department of Public Works as a mechanical equipment operator when he injured his back and neck while operating a jackhammer that became stuck in concrete he was attempting to cut up.   Petitioner's subsequent application for accidental disability retirement benefits was denied on the ground that he had not suffered an “accident” within the meaning of Retirement and Social Security Law § 605(b)(3).   We confirm.   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 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946, quoting Johnson Corp. v. Indemnity Ins. Co. of N. Am., 6 A.D.2d 97, 100, 175 N.Y.S.2d 414, aff'd 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.E.2d 704).   Unless the injury results from an event that would not ordinarily be anticipated in the context of the worker's employment, it cannot be defined as an “accidental” injury (see, Matter of Talerico v. McCall, 239 A.D.2d 863, 657 N.Y.S.2d 268;  Matter of Keller v. Regan, 212 A.D.2d 856, 858, 622 N.Y.S.2d 612).

In the instant matter, the record discloses that operating a jackhammer was a regular part of petitioner's job responsibilities and that it was not uncommon in petitioner's experience for a jackhammer to become stuck.   In view of this, we conclude that the event that precipitated petitioner's injuries cannot be considered to have been out of the ordinary and, accordingly, the determination denying his application for benefits will not be disturbed (see, Matter of Cadiz v. McCall, 236 A.D.2d 766, 654 N.Y.S.2d 48).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MEMORANDUM DECISION.