IN RE: TERRY E. RYAN

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

IN RE: TERRY E. RYAN, Petitioner, v. THOMAS P. DiNAPOLI, as State Comptroller, et al., Respondents.

522239

Decided: October 06, 2016

Before:  Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ. Kevin P. Sheerin, Mineola, for petitioner. Eric T. Schneiderman, Attorney General, New York City (William E. Storrs of counsel), for respondents.

MEMORANDUM AND JUDGMENT

Calendar Date:  September 16, 2016

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 denying petitioner's application for enhanced disability retirement benefits.

Petitioner was employed as a highway maintenance worker for the New York State Department of Transportation.  He sustained injuries in July 2007, March 2010 and July 2011 while performing his job duties.  He filed an application for enhanced disability retirement benefits under Retirement and Social Security Law article 15 based on these three incidents.  His application was initially denied on the ground that none of these incidents were accidents within the meaning of Retirement and Social Security Law § 605.1  Following a hearing, a Hearing Officer ruled, among other things, that the July 2011 incident did constitute an accident and remanded the matter to respondent New York State and Local Employees' Retirement System for further action on petitioner's application.  Respondent Comptroller, however, overruled the Hearing Officer's decision, found that none of the incidents qualified as accidents and denied petitioner's application.  This CPLR article 78 proceeding ensued.

Initially, for purposes of the Retirement and Social Security Law, an accident has been defined as a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (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 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 A.D.2d 97, 100 [1958], affd 7 N.Y.2d 222 [1959];  see Matter of Mace v. DiNapoli, 137 AD3d 1448, 1449 [2016] ).  Notably, injuries sustained while performing activities that are a regular and routine part of one's job duties have not been considered accidental (see Matter of Witts v. DiNapoli, 137 AD3d 1456, 1457 [2016];  Matter of Boncimino v. New York State Comptroller, 125 AD3d 1089, 1090 [2015] ) nor have injuries arising from risks that are an inherent aspect of a particular job (see Matter of Fulton v. New York State Comptroller, 122 AD3d 983, 983–984 [2014], lv denied 24 NY3d 915 [2015];  Matter of Forlano v. McCall, 304 A.D.2d 970, 971 [2003] ).  Ultimately, the burden is on the party seeking benefits to demonstrate that the injury-producing event was an accident (see Matter of Schoales v. DiNapoli, 132 AD3d 1184, 1185 [2015];  Matter of Begley v. DiNapoli, 132 AD3d 1050, 1051 [2015] ), and the Comptroller's determination in this regard will be upheld if supported by substantial evidence (see Matter of Mace v. DiNapoli, 137 AD3d at 1449;  Matter of Beckley v. Nitido, 123 AD3d 1330, 1331 [2014] ).

At the time of the July 2007 incident, petitioner was driving a truck in the yard to retrieve his tools.  When he stepped out of the truck cab, he stepped into a pot hole and fell, injuring his ankle.  Although he stated that he did not see the pothole before he fell, he acknowledged that there were numerous potholes in the yard.  At the time of the March 2010 incident, petitioner and a coworker were carrying a ladder toward a hopper that was to be attached to a truck to salt the roads.  It was raining outside and, when the coworker lost his grip on the ladder, the momentum caused petitioner to strike his left hand on the truck and injure his left wrist.  Finally, at the time of the July 2011 incident, petitioner was working with a crane operator fixing a guardrail.  When the guardrail was being hoisted overhead, petitioner stood up from the ground and struck his head, injuring his neck.

Each of the incidents in question occurred while petitioner was performing his regular and routine job duties.  As for the July 2007 incident, petitioner could have reasonably anticipated the pothole given the condition of the rest of the yard (see e.g. Matter of Yurko v. DiNapoli, 122 AD3d 1047, 1048 [2014] ).  Likewise, considering that it was raining at the time of the March 2010 incident, he could also have reasonably anticipated that his coworker might lose his grip on the wet ladder, causing him to become unbalanced and to sustain injury (see e.g. Matter of Lamb v. DiNapoli, 139 AD3d 1312, 1313–1314 [2016];  Matter of Schoales v. DiNapoli, 132 AD3d at 1186).  Lastly, although petitioner was evidently unaware of the suspended guardrail at the time of the July 2011 incident, we cannot find that its presence could not have been anticipated and, thus, striking it was an inherent risk of the type of work being performed (see e.g. Matter of Forlano v. McCall, 304 A.D.2d at 971;  Matter of Kordes v. McCall, 293 A.D.2d 960, 961 [2002] ).  In view of the foregoing, we find that substantial evidence supports the Comptroller's determination.

Peters, P.J., McCarthy, Clark and Aarons, JJ., concur.

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

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. Enhanced benefits are authorized by 2 NYCRR part 368 and the Older Workers' Benefit Protection Act (see 29 USC § 621–634 [1990];  Pub L 101–433, 104 U.S. Stat 978)..  FN1. Enhanced benefits are authorized by 2 NYCRR part 368 and the Older Workers' Benefit Protection Act (see 29 USC § 621–634 [1990];  Pub L 101–433, 104 U.S. Stat 978).

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