IN RE: Michael ZANCHELLI (2021)

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 disability retirement benefits.

Petitioner, an equipment operator, applied for disability retirement benefits in August 2017 alleging that he was permanently incapacitated from performing his job duties as a result of injuries he suffered to his shoulder in a fall at work on October 19, 2016.  The application was initially denied on the grounds that petitioner had less than 10 years of service credit and had not established that the 2016 incident constituted an accident within the meaning of Retirement and Social Security Law § 605(b)(3).  Petitioner requested a hearing and redetermination and, following a hearing, the Hearing Officer upheld the denial.  Upon review, respondent adopted the Hearing Officer's decision, and petitioner then commenced this CPLR article 78 proceeding.

We confirm.  Given that petitioner concededly did not have 10 years of service credit when he applied for disability retirement benefits in 2017, he bore the burden of establishing that he “was physically or mentally incapacitated for [the] performance of gainful employment as the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties” (Retirement and Social Security Law § 605[b][3];  see Matter of Bell v. DiNapoli, 168 A.D.3d 1206, 1207, 91 N.Y.S.3d 598 [2019];  Matter of Caetano v. DiNapoli, 140 A.D.3d 1579, 1580, 35 N.Y.S.3d 526 [2016], lv denied 28 N.Y.3d 906, 2016 WL 6432779 [2016]).  For purposes of the Retirement and Social Security Law, “an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed” (Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 682, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018];  see Matter of Loia v. DiNapoli, 164 A.D.3d 1513, 1514, 83 N.Y.S.3d 372 [2018];  Matter of Stancarone v. DiNapoli, 161 A.D.3d 144, 146–147, 76 N.Y.S.3d 238 [2018]).  Although the focus is on the “precipitating cause of injury, rather than on the petitioner's job assignment” (Matter of Kelly v. DiNapoli, 30 N.Y.3d at 682, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks, brackets and citation omitted]), “an injury [that] 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” (id. at 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks and citation omitted];  accord Matter of Bell v. DiNapoli, 168 A.D.3d at 1207, 91 N.Y.S.3d 598).

Petitioner testified that, on the day in issue, while working with a crew of six other laborers repairing a road, he went into the bed of their utility truck containing tools to get a rake, entering through the rear doors of the truck.  According to petitioner, he retrieved the rake and, while exiting through the rear opening of the truck bed with his back facing the street, descending backward, he stepped on a handheld saw left on the ground by a coworker and fell, injuring his shoulder.  He reported the incident to his supervisor, who prepared an accident report the following day.  However, the report recounted that, “while getting out of the truck, [petitioner] took a few steps and fell over the demo saw,” injuring his shoulder.

The Hearing Officer and respondent credited the description of the incident in the earlier May 2016 report over petitioner's contrary testimony provided in September 2018, and we accord deference to that credibility assessment (see Matter of Harris v. New York State & Local Retirement Sys., 191 A.D.3d 1085, 1086, 141 N.Y.S.3d 539 [2021];  Matter of Buckshaw v. DiNapoli, 169 A.D.3d 1139, 1141, 93 N.Y.S.3d 722 [2019], lv denied 33 N.Y.3d 904, 2019 WL 2041641 [2019]).  Under these circumstances, substantial evidence supports the Comptroller's determination that petitioner's trip and fall over tools while walking away from the truck after retrieving tools, a task he testified he had performed “a hundred times,” was a risk inherent in his job duties and occurred as a result of his performance of routine employment duties, and did not involve an unexpected event or hidden danger (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 Parry v. New York State Comptroller, 187 A.D.3d 1303, 1305, 133 N.Y.S.3d 100 [2020];  Matter of Bell v. DiNapoli, 168 A.D.3d at 1208, 91 N.Y.S.3d 598;  compare Matter of Lewis v. New York State Comptroller, 176 A.D.3d 1545, 1546–1547, 111 N.Y.S.3d 459 [2019]).  Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.  Accordingly, respondent's determination is confirmed.

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

Pritzker, J.

Egan Jr., J.P., Lynch, Clark and Colangelo, JJ., concur.