IN RE: Application of Laura NICHOLAS

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

IN RE: Application of Laura NICHOLAS, a/k/a Laura DiNapoli, Petitioner-Respondent, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents-Appellants.

Decided: August 08, 2002

ANDRIAS, J.P., ROSENBERGER, WALLACH, RUBIN and GONZALEZ, JJ. David Jalosky, for Petitioner-Respondent. Kathleen Alberton, for Respondents-Appellants.

Judgment (denominated an order), Supreme Court, New York County (Marcy Friedman, J.), entered May 3, 2001, which granted the petition, annulled the determination of respondent Board of Trustees of the Police Pension fund, dated May 3, 2000, denying petitioner accident disability retirement benefits, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed.

Accepting that petitioner tripped over an indentation in a tile floor in the precinct house where she was on duty, she did not establish, as a matter of law, that her injury was the result of a sudden, unexpected circumstance (see, Matter of Starnella, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421).   There is no evidence in the record as to the size or depth of the indentation, or even that it was more than trivial (the PBA consultant conceded that photographs of the accident scene were not taken until after the station house had been renovated and “did not show anything”).   Nor is there evidence that the indentation was of recent origin or that petitioner had been unaware of it.