IN RE: Mark FRANKS (2008)

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 which denied petitioner's application for accidental disability retirement benefits.

On February 11, 1999, petitioner, a police officer employed by the City of Yonkers in Westchester County, responded to an alarm regarding an armed robbery.   Looking for the suspect, petitioner and his partner went to an abandoned motel which was in the process of being demolished.   Approaching the motel, petitioner walked up the sidewalk, a portion of which was damaged pavement and curbing.   He stepped over the curb, into a depression, and sustained an injury to his knee.   Petitioner applied for accidental disability retirement benefits in October 2004, but his request was denied.   Upon petitioner's request for a redetermination, a hearing was held and the Hearing Officer ultimately concluded that the incident giving rise to petitioner's injury was not an accident within the meaning of Retirement and Social Security Law § 363 and denied petitioner's application.   Respondent Comptroller agreed with this determination, prompting petitioner to commence this proceeding.

 “[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury” (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 [1982];  see Matter of Sinclair v. New York State & Local Retirement Sys., 42 A.D.3d 595, 596, 838 N.Y.S.2d 270 [2007];  Matter of Engber v. New York State Comptroller, 39 A.D.3d 1133, 1133, 835 N.Y.S.2d 495 [2007];  Matter of Forlano v. McCall, 304 A.D.2d 970, 971, 757 N.Y.S.2d 146 [2003] ).   The petitioner bears the burden of proving that an injury was accidental and the Comptroller's determination in this regard will be upheld if supported by substantial evidence (see Matter of Sinclair v. New York State & Local Retirement Sys., 42 A.D.3d at 596, 838 N.Y.S.2d 270;  Matter of Forlano v. McCall, 304 A.D.2d at 971, 757 N.Y.S.2d 146).   Here, petitioner admitted that he was aware that the curb was damaged and, while crossing over it, he stepped into a shallow depression which he had not noticed.   Under the circumstances, “the hazard presented was one that petitioner could have reasonably anticipated, even if he did not actually see it until after [sustaining his injury]” (Matter of Avery v. McCall, 308 A.D.2d 677, 678, 764 N.Y.S.2d 658 [2003];  see Matter of Fischer v. New York State Comptroller, 46 A.D.3d 1006, 846 N.Y.S.2d 482, 483 [2007];  Matter of Coon v. New York State Comptroller, 30 A.D.3d 884, 885, 816 N.Y.S.2d 763 [2006], lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990, 860 N.E.2d 990 [2006];  Matter of Lassen v. Hevesi, 9 A.D.3d 780, 781, 779 N.Y.S.2d 868 [2004];  Matter of Madonna v. New York State Police & Firemen Retirement Sys., 257 A.D.2d 971, 971, 684 N.Y.S.2d 340 [1999], lv. denied 93 N.Y.2d 806, 689 N.Y.S.2d 707, 711 N.E.2d 983 [1999];  Matter of O'Donnell v. New York State & Local Retirement Sys., 249 A.D.2d 607, 607, 670 N.Y.S.2d 631 [1998] ).

Petitioner's argument that there should be a different result because his search for the armed robbery suspect left him “faced with a dire emergency” is unavailing.   Petitioner admitted to taking part in searches for suspects “[m]any times” during his years as a police officer, and his job description-which was entered into evidence at the hearing-is replete with references to acting in response to crimes and in emergency situations (see Matter of Engber v. New York State Comptroller, 39 A.D.3d at 1134, 835 N.Y.S.2d 495;  Matter of Pappalardo v. Hevesi, 34 A.D.3d 1021, 1022, 823 N.Y.S.2d 634 [2006] ).   Accordingly, “ ‘the incident in question emanated from a risk inherent in his regular job duties' ” (Matter of Engber v. New York State Comptroller, 39 A.D.3d at 1134, 835 N.Y.S.2d 495, quoting Matter of Pappalardo v. Hevesi, 34 A.D.3d at 1022, 823 N.Y.S.2d 634;  see Matter of Fischer v. New York State Comptroller, supra;  Matter of Coon v. New York State Comptroller, 30 A.D.3d at 885, 816 N.Y.S.2d 763;  Matter of Penkalski v. McCall, 292 A.D.2d 735, 736, 738 N.Y.S.2d 763 [2002] ) and, since substantial evidence supports the Comptroller's determination, we confirm.

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

KAVANAGH, J.

MERCURE, J.P., PETERS, ROSE and LAHTINEN, JJ., concur.