IN RE: David STALTER

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

IN RE: David STALTER, Petitioner, Gary Wall, et al., Appellants, v. Eugene E. Scarpato, etc., et al., Respondents.

Decided: August 26, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO and THOMAS A. ADAMS, JJ. Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Wayne J. Schaefer of counsel), for appellants. Cullen and Dykman, LLP, Garden City, N.Y. (Marianne McCarthy, Peter J. Mastaglio, and Gerard Fishberg of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review three determinations of the Board of Trustees of the Village of Lynbrook, dated March 15, 2000, April 26, 2000, and April 26, 2000, respectively, denying the petitioners benefits pursuant to General Municipal Law § 207-c, the appeal, as limited by the brief, is from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Winick, J.), dated November 20, 2000, as granted the respondents' motion to dismiss the proceeding, denied the petition, and dismissed the proceeding with respect to the petitioners Gary Wall and John Reichert.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The appellants, Gary Wall and John Reichert, together with David Stalter, police officers with the respondent Village of Lynbrook (hereinafter the Village), commenced this proceeding pursuant to CPLR 7803(3), inter alia, to annul two determinations of the Village denying them benefits pursuant General Municipal Law § 207-c for injuries sustained while on duty.   The Supreme Court granted the Village's motion pursuant to CPLR 7804(f) to dismiss the petition.   For the reasons discussed in Matter of Clements v. Panzarella, 297 A.D.2d 4, 746 N.Y.S.2d 495, [decided herewith], we affirm.

 Wall and Reichert failed to demonstrate that their respective injuries were incurred in the performance of special work related to the nature of heightened risks and duties to which police officers are exposed in the criminal justice process and that such injuries are compensable under General Municipal Law § 207-c (see Matter of Balcerak v. County of Nassau, 94 N.Y.2d 253, 701 N.Y.S.2d 700, 723 N.E.2d 555;  Matter of Clements v. Panzarella, supra).   Officer Wall injured his right foot when he fell removing cones from a police vehicle while on barricade and cone detail, and re-injured the foot when he tripped over an air hose while on assignment at a Village garage.   Officer Reichert injured his knee stepping off the rear of a truck while conducting a routine commercial vehicle inspection.   Thus, the Supreme Court correctly denied the petition and dismissed the proceeding as to Wall and Reichert.

Officer Wall argues that additional injuries he incurred on August 26, 1988, August 7, 1991, July 10, 1993, and April 16, 1998, resulted from special work related to the nature of heightened risks and duties to which he was exposed in the criminal justice process.   However, in support of its motion to dismiss the petition, the Village submitted unrebutted sworn assertions that the denial of benefits to Officer Wall at issue in this proceeding was not based on such injuries, and that Officer Wall was entitled to seek benefits for the same.   Thus, such injuries do not provide a basis upon which to annul the Village's determination as to Officer Wall.

The appellants' remaining contentions lack merit.

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