IN RE: John SESTITO (2018)

MEMORANDUM AND JUDGMENT

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, a firefighter, was injured while exiting his vehicle after responding to an emergency call on November 23, 2010.  He was injured again on May 22, 2011 while disembarking a fire truck.  Petitioner thereafter applied for accidental disability retirement benefits and performance of duty disability retirement benefits for both incidents, and both applications were denied.  Thereafter, with regard to the 2011 incident, the New York State and Local Retirement System conceded that petitioner was permanently incapacitated and petitioner conceded that it was not an accident and, as a result, petitioner was granted performance of duty disability retirement benefits (see Retirement and Social Security § 363-c).  Following a hearing addressed to whether the 2010 incident was an accident, respondent denied petitioner's application for accidental disability retirement benefits.  This CPLR article 78 proceeding ensued.

We confirm.  To qualify as an accident for purposes of accidental disability retirements benefits under Retirement and Social Security § 363, the event causing the incapacitating injury must be a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] [internal quotation marks and citations omitted]; see Matter of Kowal v. DiNapoli, 30 N.Y.3d 1124, 1125, 70 N.Y.S.3d 879, 94 N.E.3d 442 [2018] ).  Consequently, “an 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 Kelly v. DiNapoli, 30 N.Y.3d at 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks and citation omitted] ).  Here, petitioner testified that his fire company received an alarm call to respond to a residence and, when he parked his vehicle at the curb and stepped out of the driver's side onto the uneven asphalt curb, he twisted his ankle.  Importantly, petitioner was engaged in an activity undertaken in the performance of his ordinary employment duties, exiting his vehicle after responding to an emergency call, and there was no “precipitating accidental event which was not a risk of the work performed” that caused the injury, such as a loss of balance or a slip on a wet surface (id. at 682, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks and citation omitted]; compare Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998]; Matter of Pratt v. Regan, 68 N.Y.2d 746, 747, 506 N.Y.S.2d 328, 497 N.E.2d 695 [1986]; Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568, 479 N.Y.S.2d 171, 468 N.E.2d 9 [1984]; Matter of Sammon v. DiNapoli, 97 A.D.3d 952, 952–953, 948 N.Y.S.2d 719 [2012] ).  To that end, a fall “as a result of one's own misstep, without more, is not so out-of-the-ordinary or unexpected as to constitute an accidental injury” (Matter of Starnella v. Bratton, 92 N.Y.2d at 839, 677 N.Y.S.2d 62, 699 N.E.2d 421; see Matter of Kelly v. DiNapoli, 30 N.Y.3d at 683, 70 N.Y.S.3d 881, 94 N.E.3d 444).  As the incident was a risk inherent in petitioner's regular job duties, it was not unexpected (see Matter of Kelly v. DiNapoli, 30 N.Y.3d at 683, 70 N.Y.S.3d 881, 94 N.E.3d 444).  Given that substantial evidence supports the determination, it will not be disturbed (see id. at 684, 70 N.Y.S.3d 881, 94 N.E.3d 444).¹

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

FOOTNOTES

1.   The Court of Appeals has ruled that certain factual scenarios are accidental “as a matter of law” (Matter of McCambridge v. McGuire, 62 N.Y.2d at 568, 569, 479 N.Y.S.2d 171, 468 N.E.2d 9 n; accord Matter of Pratt v. Regan, 68 N.Y.2d at 747, 506 N.Y.S.2d 328, 497 N.E.2d 695; see also Matter of Kelly v. DiNapoli, 30 N.Y.3d at 683, 70 N.Y.S.3d 881, 94 N.E.3d 444).  Notwithstanding those fact-specific rulings, our review in this CPLR article 78 proceeding is whether there is “substantial evidence” to support the administrative determination (CPLR 7803[4]; see Matter of Kelly v. DiNapoli, 30 N.Y.3d at 684, 70 N.Y.S.3d 881, 94 N.E.3d 444; Matter of Jason B. v. Novello, 12 N.Y.3d 107, 114, 876 N.Y.S.2d 682, 904 N.E.2d 818 [2009]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

Pritzker, J.

McCarthy, J.P., Egan Jr., Aarons and Rumsey, JJ., concur.