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

IN RE: John K. SLAGLE, Petitioner, v. H. Carl McCALL, as Comptroller of the State of New York, et al., Respondents.

Decided: April 25, 2002

Before:  CARDONA P.J., CREW III, SPAIN, CARPINELLO and ROSE, JJ. Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester (Matthew J. Fusco of counsel), for petitioner. Eliot Spitzer, Attorney-General, Albany (William E. Storrs of counsel), 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 firefighter, was injured while responding to a fire when he tripped on a fallen chain link fence in the back yard of a house.   After a hearing on petitioner's application for accidental disability retirement benefits, respondent Comptroller concluded that petitioner's injury was the result of a misstep as he attempted to step over the fallen fence and that, therefore, he did not sustain an accident within the meaning of the Retirement and Social Security Law. Relying on his testimony at the hearing that he was unaware of the fallen fence because it was hidden in tall grass and weeds, petitioner contends that his encounter with the fence and his fall were in fact sudden and unexpected.

Assuming petitioner's testimony that he was unaware of the fence was sufficient to demonstrate an accident (but see, Matter of Minchak v. McCall, 246 A.D.2d 952, 667 N.Y.S.2d 863), neither the accident report filed by petitioner shortly after the injury nor his application for benefits contained any reference to tall grass, weeds or the hidden nature of the fallen fence.   Rather, the report and application state that he had to step over the downed fence and his boot caught on the fence, causing him to fall.   These documents provide substantial evidence to support the Comptroller's finding that petitioner's fall was caused by his misstep or miscalculation in attempting to step over the fallen fence while engaged in the performance of his ordinary employment duties.   Accordingly, there is no basis to disturb the Comptroller's conclusion that petitioner did not sustain an accident (see, Matter of Madonna v. New York State Police & Firemen Retirement Sys., 257 A.D.2d 971, 684 N.Y.S.2d 340, lv. denied 93 N.Y.2d 806, 689 N.Y.S.2d 707, 711 N.E.2d 983;  Matter of O'Donnell v. New York State & Local Retirement Sys., 249 A.D.2d 607, 670 N.Y.S.2d 631).   Petitioner's testimony at the hearing merely raised a question of credibility for the Comptroller to resolve (see, e.g., Matter of Dering v. Regan, 177 A.D.2d 931, 576 N.Y.S.2d 685, lv. denied 80 N.Y.2d 751, 587 N.Y.S.2d 287, 599 N.E.2d 691).

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



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