IN RE: Dawn M. VAN ROTEN

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

IN RE: Dawn M. VAN ROTEN, as Executor of the Estate of Charles Van Roten, Deceased, Petitioner, v. H. Carl McCALL, as New York State Comptroller, Respondent.

Decided: October 26, 2000

Before:  MERCURE, J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. Schlachter & Mauro (Reynold A. Mauro of counsel), Commack, for petitioner. Eliot Spitzer, Attorney General (Alicia R. Ouellette of counsel), Albany, 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 request for accidental disability retirement benefits.

In November 1991, petitioner's decedent, a police sergeant, allegedly sustained three transverse vertebrae fractures to his back after he slipped and fell down a flight of stairs while conducting an investigation.   He subsequently filed an application for accidental disability retirement benefits which was denied on the grounds that the November 1991 incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363 and, further, that decedent was not permanently incapacitated from the performance of his duties.   Decedent, who subsequently died of cancer, commenced this CPLR article 78 proceeding contending that the determination is not supported by substantial evidence and that various procedural infirmities require its annulment.

 We disagree.  “ ‘[A]n 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’ ” (Matter of Tuper v. McCall, 259 A.D.2d 941, 941, 687 N.Y.S.2d 756, quoting Matter of Cadiz v. McCall, 236 A.D.2d 766, 766, 654 N.Y.S.2d 48).   Here, decedent testified at the hearing that he slipped as he descended some stairs and, thus, “respondent could rationally conclude that [decedent's] fall was the result of [his] own misstep and did not constitute an accident” (Matter of Tuper v. McCall, supra, at 942, 687 N.Y.S.2d 756;  see, Matter of Klug v. McCall, 224 A.D.2d 818, 638 N.Y.S.2d 191;  Matter of Napier v. State Comptroller, 211 A.D.2d 941, 621 N.Y.S.2d 945).   Inasmuch as substantial evidence supports respondent's determination that decedent's injury occurred in the ordinary course of his duties and not from an unexpected event, it must be upheld (see, e.g., Matter of Killmer v. McCall, 268 A.D.2d 652, 701 N.Y.S.2d 188;  Matter of Kazmierczak v. McCall, 252 A.D.2d 728, 675 N.Y.S.2d 398, lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764).

In light of our finding on the issue of accidental injury, we need not address petitioner's contention that respondent erred in determining decedent was not permanently incapacitated (see, Matter of Lisa v. McCall, 234 A.D.2d 703, 704, 650 N.Y.S.2d 844).

 Furthermore, petitioner's contention that it was error for a Hearing Officer other than the one who presided over the hearing to render the determination must be rejected.   The death of the presiding Hearing Officer prior to the rendering of a determination necessitated that respondent appoint a replacement (see, Matter of Minchak v. McCall, 246 A.D.2d 952, 667 N.Y.S.2d 863;  see also, Matter of Kelly v. Duffy, 144 A.D.2d 792, 534 N.Y.S.2d 551) and, in any event, petitioner has failed to demonstrate that substantial prejudice resulted therefrom (see, Matter of Minchak v. McCall, supra;  Matter of Morrisey v. New York State & Local Police & Firemen Retirement Sys., 239 A.D.2d 635, 636, 656 N.Y.S.2d 567). Petitioner's remaining contentions, including the claim that decedent was denied a fair hearing because the Hearing Officer adopted portions of respondent's brief in his determination, have been reviewed and found to be without merit.

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

GRAFFEO, J.

MERCURE, J.P., PETERS, SPAIN and CARPINELLO, JJ., concur.

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