IN RE: Joan GAMMAN

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Joan GAMMAN, Petitioner-Appellant, v. Raymond KELLY, etc., et al., Respondents-Respondents.

Decided: October 26, 2004

TOM, J.P., SULLIVAN, LERNER, GONZALEZ, CATTERSON, JJ. Jeffrey L. Goldberg, P.C., Lake Success (Chester P. Lukaszewski of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Larry A. Sonnenshein of counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 4, 2003, which denied petitioner police officer's application to annul respondent Board of Trustee's determination, by virtue of a tie vote, denying petitioner an accidental disability pension, and dismissed the petition, unanimously affirmed, without costs.

The record contains credible evidence (see Matter of Meyer v. Board of Trustees, 90 N.Y.2d 139, 144-145, 147-148, 659 N.Y.S.2d 215, 681 N.E.2d 382 [1997] ) that petitioner's disabling knee injury was not caused by an accident within the meaning of Administrative Code of the City of New York § 13-252.   The contemporaneously prepared line-of-duty injury report contains petitioner's statement that as she moved her chair away from her desk, it “slid backwards out from under me,” causing her to fall, and her supervisor's statement adding that there were no visible hazards in the office.   Such a fall is analogous to a fall down stairs as a result of “one's own misstep,” i.e., “not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law” (Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998];  cf. Matter of Russell v. Board of Trustees, 288 A.D.2d 19, 732 N.Y.S.2d 13 [2001], lv. denied 97 N.Y.2d 608, 739 N.Y.S.2d 97, 765 N.E.2d 300 [2002] ).   No basis exists for finding, as a matter of law, that the chair had a broken back, as evidenced by witness statements and accompanying photographs first prepared more than four years after the occurrence, and submitted to the Board's third session after the matter had been adjourned for a legal opinion from the Corporation Counsel as to whether the occurrence was an accident (see Matter of Reichfeld v. Safir, 259 A.D.2d 298, 686 N.Y.S.2d 415 [1999], lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696 [1999] ).