IN RE: John J. SWEENEY

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

IN RE: John J. SWEENEY, Petitioner, v. NEW YORK STATE COMPTROLLER, et al., Respondents.

Decided: July 28, 2011

Before:  PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ. Jonathan I. Edelstein, New York City, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth 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 police officer, injured his ankle when he slipped and fell on an icy patch while responding to a burglar alarm in January 2007.   He submitted an application for accidental disability retirement benefits, which was denied.   After a hearing, the Hearing Officer denied the application finding that the incident did not constitute an accident.   Respondent Comptroller upheld the denial and this CPLR article 78 proceeding ensued.

 Petitioner bears the burden of proving that his injury was an accident, and the Comptroller's determination will be upheld if supported by substantial evidence (see Matter of Kempkes v. DiNapoli, 81 A.D.3d 1071, 1072, 916 N.Y.S.2d 338 [2011];  Matter of Confreda v. New York State Comptroller, 56 A.D.3d 938, 939, 867 N.Y.S.2d 268 [2008], lv. denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925 [2009] ).  “[A]n injury which 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 Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982];  accord Matter of Kenny v. Di-Napoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] ).   When carrying out some police duties, an officer on foot may encounter, as part of the work being performed, a vast array of conditions, many of which are not easily traversed and can cause a fall.   Encountering such conditions while actively engaged in police duties often is not an unexpected event, and the Comptroller may find a fall caused thereby to be an inherent risk of the job (see Matter of Murray v. New York State Comptroller, 84 A.D.3d 1681, 1682, 924 N.Y.S.2d 192 [2011] [falling as chasing suspect on dimly lit street];  Matter of Neidecker v. DiNapoli, 82 A.D.3d 1483, 1484, 919 N.Y.S.2d 557 [2011] [tripping on vegetation while chasing after suspect and also stepping in small depression in field when going to give first aid at baseball field];  Matter of Quigley v. Hevesi, 48 A.D.3d 1023, 1024, 852 N.Y.S.2d 462 [2008] [stepping on uneven or cracked pavement during traffic stop];  Matter of McCabe v. Hevesi, 38 A.D.3d 1035, 1035–1036, 831 N.Y.S.2d 573 [2007] [stumbling on defective landing/stairs when at residence investigating possible intruder];  see also Matter of Coon v. New York State Comptroller, 30 A.D.3d 884, 885, 816 N.Y.S.2d 763 [2006], lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006];  Matter of Lucian v. McCall, 7 A.D.3d 905, 906, 776 N.Y.S.2d 637 [2004];  Matter of Penkalski v. McCall, 292 A.D.2d 735, 736, 738 N.Y.S.2d 763 [2002] ).

 Here, petitioner responded to the scene of a possible burglary in progress at a residence.   His attention was focused on a potential suspect in the house when, as he moved across outside steps, he reportedly slipped on a patch of ice and fell.   Under such circumstances, substantial evidence supports the Comptroller's determination that petitioner did not adequately establish that his fall was an accident within the meaning of Retirement and Social Security Law § 363.

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

LAHTINEN, J.

PETERS, J.P., ROSE, MALONE JR. and McCARTHY, JJ., concur.

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