IN RE: Donna DEXTER (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 which denied petitioner's request for accidental disability retirement benefits.

Petitioner was employed as a food service worker at Harlem Valley Psychiatric Center in Dutchess County, when she allegedly sustained injuries after she tripped on the lid of a movable dish cart and fell on her right shoulder and arm.   Following a hearing, petitioner's application for accidental disability retirement benefits was denied upon a finding that the incident was not an “accident” within the meaning of Retirement and Social Security Law § 63.   Upon our review of the record, we find that respondent could reasonably have concluded that there was no sudden, fortuitous, unexpected or out of the ordinary quality to petitioner's trip and fall which would have entitled her to accidental disability benefits (see, 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).   Petitioner testified that although the cart was usually stored underneath a counter with its front flush with the counter and with its lid in a closed position, she was aware that after employees from the previous shift had used the cart, they occasionally failed to close the lid and left the cart sitting out and away from the counter.   It is undisputed that the cart was in such a position at the time of petitioner's fall.   In view of this, the conclusion that the incident was the result of petitioner's misstep, and not an accident within the meaning of Retirement and Social Security Law (see, Matter of Minchak v. McCall, 246 A.D.2d 952, 667 N.Y.S.2d 863;  Matter of Hetzler v. New York State & Local Retirement Sys., 232 A.D.2d 946, 648 N.Y.S.2d 813), is supported by substantial evidence.

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

MEMORANDUM DECISION.