IN RE: Lawrence ROACH

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

IN RE: Lawrence ROACH, Petitioner, v. H. Carl McCALL, as State Comptroller, et al., Respondents.

Decided: June 25, 1998

Before MERCURE, J.P., and CREW, PETERS, SPAIN and GRAFFEO, JJ. Brecher, Fishman, Pasternack & Popish (Jordan A. Ziegler, of counsel), Hauppauge, for petitioner. Dennis C. Vacco, Attorney General (Francis F. Dow, of counsel), Albany, for respondents.

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

 Petitioner, a tow-truck operator employed by the Suffolk County Police Department, filed an application for accidental disability retirement benefits contending that he had sustained two injuries to his back.   Specifically, petitioner alleged that he injured his back on September 12, 1992 when the impound yard gate that he was attempting to close became stuck and, again, on April 4, 1993 while pushing a disabled vehicle that was blocking his access to another vehicle.   Respondent Comptroller denied petitioner's subsequent application for accidental disability retirement benefits upon the ground that he did not suffer an “accident” within the meaning of Retirement and Social Security Law § 605(b)(3).   We agree.   An “accident” is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties (see, Matter of Talerico v. McCall, 239 A.D.2d 863, 657 N.Y.S.2d 268;  Matter of Bergland v. Regan, 199 A.D.2d 812, 605 N.Y.S.2d 529).  Here, the record reveals that petitioner regularly closed the impound yard gate in the normal course of his employment, and petitioner admitted that it was not unusual for the gate to become stuck.   As to the April 1993 incident, although petitioner testified that he had not been called upon in the past to push one vehicle out of the way in order to gain access to another, he also readily admitted that “[w]hatever it took to get [a vehicle] was what [he] had to do”.   In view of such testimony, we find that substantial evidence supports the determination that petitioner's injuries did not constitute an accident (see, Matter of Butler v. McCall, 247 A.D.2d 709, 668 N.Y.S.2d 762;  Matter of Woods v. McCall, 240 A.D.2d 839, 658 N.Y.S.2d 537, lv. denied 90 N.Y.2d 808, 664 N.Y.S.2d 269, 686 N.E.2d 1364;  Matter of Malenda v. Regan, 134 A.D.2d 808, 521 N.Y.S.2d 863).

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

MEMORANDUM DECISION.

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