IN RE: Thomas F. O'DONNELL (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 Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a retired Lieutenant in the City of Buffalo Fire Department, filed for accidental disability retirement benefits in June 1994.   Petitioner alleged that he had sustained a permanent disability to his shoulder as the result of two on-the-job accidents.   The first injury occurred on November 9, 1986, during a fire at which petitioner fell or tripped into a hole on a torn-up sidewalk.   The second injury occurred on December 26, 1990, when petitioner slipped on ice at the scene of a fire while he was assisting other firefighters in returning a hose to the company's pumper.   Following a hearing, the application was disapproved upon a finding that neither incident constituted an “accident” within the meaning of Retirement and Social Security Law § 363.   Substantial evidence supports the conclusion that petitioner's injuries were the result of an ordinary misstep and a risk inherent in the duties of a firefighter and did not constitute an accident within the meaning of the Retirement and Social Security Law (see, Matter of Seim v. Regan, 191 A.D.2d 931, 595 N.Y.S.2d 136).   Consequently, the determination denying petitioner's application for accidental disability retirement benefits will not be disturbed (see, Matter of Finnegan v. Regan, 116 A.D.2d 878, 879, 498 N.Y.S.2d 488).

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

MEMORANDUM DECISION.