Berman v. DiNapoli

208 A.D.3d 1568

175 N.Y.S.3d 744

Matter of Elaine Rehfuss BERMAN, Petitioner,

v.Thomas P. DINAPOLI, as State Comptroller, Respondent.

534235

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

Calendar Date: September 14, 2022

Decided and Entered: September 29, 2022

Schwab & Gasparini PLLC, White Plains (Warren J. Roth of counsel), for petitioner.

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND JUDGMENT

Lynch, J.

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 denying petitioner's application for accidental disability retirement benefits.

Petitioner's deceased spouse (hereinafter decedent) was a firefighter who filed an application for accidental disability retirement benefits in October 2015 alleging that he was permanently disabled as a result of various injuries that he sustained in three incidents that occurred on May 4, 2009, February 16, 2014 and January 19, 2015. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law § 363, and notice for the 2009 incident was not timely filed pursuant to Retirement and Social Security Law § 363(c). Following a hearing and redetermination, the Hearing Officer denied decedent's application, finding that the underlying incidents occurred during the course of routine employment duties and were a risk inherent in the performance thereof. Respondent upheld the Hearing Officer's decision, prompting petitioner, as the surviving spouse, to commence this CPLR article 78 proceeding to challenge respondent's determination.

Petitioner's burden was to demonstrate that decedent's disability arose out of an accident, which, for purposes of the Retirement and Social Security Law, is 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, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] [internal quotation marks and citation omitted]; accord Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] ; see Matter of Crone v. DiNapoli, 201 A.D.3d 1260, 1261, 162 N.Y.S.3d 516 [3d Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165448 [2022] ). This is a " ‘commonsense definition’ " ( Matter of Kelly v. DiNapoli, 30 N.Y.3d at 681, 70 N.Y.S.3d 881, 94 N.E.3d 444, quoting 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 at 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 ). "Under this standard, petitioner was required to demonstrate that [decedent's] injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in his ordinary job duties" ( Matter of Crone v. DiNapoli, 201 A.D.3d at 1261, 162 N.Y.S.3d 516 [citations omitted]). An event would be unexpected when it is not a risk inherent in the duties of a firefighter (see Matter of Kelly v. DiNapoli, 30 N.Y.3d at 683–684, 70 N.Y.S.3d 881, 94 N.E.3d 444 ).

Here, the evidence established that decedent's injuries occurred " ‘without an unexpected event [and] as the result of activity undertaken in the performance of [his] ordinary employment duties’ " as a firefighter and, thus, substantial evidence supports respondent's determination that he did not sustain an accidental injury on any of the dates in question ( Matter of Alente v. New York State Comptroller, 205 A.D.3d 1295, 1296, 169 N.Y.S.3d 705 [3d Dept. 2022], quoting Matter of Kelly v. DiNapoli, 30 N.Y.3d at 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 ; see Matter of Bohack v. DiNapoli, 197 A.D.3d 1384, 1385, 153 N.Y.S.3d 651 [3d Dept. 2021] ). With regard to the May 2009 incident, as respondent correctly determined, decedent failed to file written notice thereof until October 2015, well in excess of the 90–day notice requirement (see Retirement and Social Security Law § 363[c][a] ), and petitioner did not demonstrate that any of the exceptions to that requirement apply (see Retirement and Social Security Law § 363[c][b] ; Matter of Massi v. DiNapoli, 89 A.D.3d 1361, 1361–1362, 933 N.Y.S.2d 442 [3d Dept. 2011] ). In any event, petitioner offered no evidence concerning that incident at the hearing, and decedent's report of injury for that incident established that his injuries occurred during a routine firefighter training exercise and not as a result of an unexpected precipitating event (see Matter of Kelly v. DiNapoli, 30 N.Y.3d at 678, 70 N.Y.S.3d 881, 94 N.E.3d 444 ; Matter of Bohack v. DiNapoli, 197 A.D.3d at 1385, 153 N.Y.S.3d 651 ; Matter of McGoey v. DiNapoli, 194 A.D.3d 1296, 1298–1299, 149 N.Y.S.3d 581 [3d Dept. 2021] ; Matter of O'Mahony v. DiNapoli, 157 A.D.3d 1107, 1109, 69 N.Y.S.3d 167 [3d Dept. 2018] ).

The evidence further established that the 2014 and 2015 incidents occurred while decedent was responding to active emergencies. With regard to the 2014 incident, petitioner offered no testimony or evidence and relied upon the employer's 2014 report, which reflected that, while decedent was responding to a fire alarm call and crossing...