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

IN RE: Thomas M. LASSEN, Petitioner, v. Alan G. HEVESI, as Comptroller of the State of New York and Administrator of the New York State and Local Police and Fire Retirement System, Respondent.

Decided: July 22, 2004

Before:  MERCURE, J.P., PETERS, MUGGLIN, ROSE and KANE, JJ. Schwan & Sammarco, Buffalo (Tracy D. Sammarco of counsel), for petitioner. Eliot Spitzer, Attorney General, Albany (William E. Storrs of counsel), for respondent.

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 which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a firefighter, was injured when he tripped over a lawnmower on the front porch of a burning residence.   At the time of the incident, petitioner was backing out of the building in order to observe the fire and to remove his equipment from the building.   Petitioner had entered the residence through a different door, and did not know the lawnmower was there.   Petitioner's initial application for accidental disability retirement benefits was denied. After a hearing, a Hearing Officer denied petitioner's application on the ground that the incident did not constitute an accident under Retirement and Social Security Law § 363.   Respondent adopted the Hearing Officer's findings, resulting in this CPLR article 78 proceeding.

Substantial evidence supports respondent's conclusion that petitioner's injury resulted from “an ordinary misstep and a risk inherent in the duties of a firefighter and [was not] an accident within the meaning of the Retirement and Social Security Law,” despite petitioner's lack of awareness of the lawnmower (Matter of O'Donnell v. New York State & Local Retirement Sys., 249 A.D.2d 607, 607, 670 N.Y.S.2d 631 [1998];  see Matter of Santorsola v. McCall, 302 A.D.2d 727, 728, 755 N.Y.S.2d 492 [2003];  Matter of Minchak v. McCall, 246 A.D.2d 952, 952-953, 667 N.Y.S.2d 863 [1998] ).   As such, we decline to disturb respondent's determination denying petitioner's application.

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

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