Bohack v. DiNapoli

197 A.D.3d 1384

153 N.Y.S.3d 651

In the Matter of Michael BOHACK, Petitioner,

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

532861

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

Calendar Date: August 18, 2021

Decided and Entered: September 2, 2021

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., Egan Jr., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND JUDGMENT

Egan Jr., 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, a firefighter, filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to his back that were sustained during a training exercise in June 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination, the Hearing Officer denied petitioner's application, finding that the underlying incident occurred during the course of petitioner's routine employment duties and was a risk inherent in the performance thereof. Respondent upheld the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

"As the applicant, petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and [respondent's] determination in this regard will be upheld if supported by substantial evidence" ( Matter of Harris v. New York State & Local Retirement Sys., 191 A.D.3d 1085, 1085, 141 N.Y.S.3d 539 [2021] [citations omitted]; see Matter of Parry v. New York State Comptroller, 187 A.D.3d 1303, 1304, 133 N.Y.S.3d 100 [2020] ; Matter of Piatti v. DiNapoli, 187 A.D.3d 1274, 1275, 131 N.Y.S.3d 436 [2020] ). For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] [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] ). To that end, "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental" ( Matter of McGoey v. DiNapoli, 194 A.D.3d 1296, 1297, 149 N.Y.S.3d 581 [2021] [internal quotation marks, brackets and citation omitted]; see Matter of Parry v. New York State Comptroller, 187 A.D.3d at 1304, 133 N.Y.S.3d 100 ; Matter of Angelino v. New York State Comptroller, 176 A.D.3d 1376, 1378, 111 N.Y.S.3d 410 [2019] ).

Petitioner was granted performance of duty disability retirement benefits in April 2017 and, hence, the sole issue to be resolved at the hearing was whether the June 2014 incident constituted an accident. In this regard, petitioner testified that, on the day in question, he and two other firefighters were engaged in a routine training exercise – one that petitioner had performed 40 or 50 times during the course of his career – involving the simulated rescue of an injured firefighter. During the exercise, petitioner and another firefighter were to lift the firefighter cast in the role of the victim, who was lying prone on the floor, and transport him – feet first – out of an open window, whereupon he would be lowered via a rope to the ground below. Petitioner grabbed the victim by the cuff of his pants and his waist strap and, with the assistance of his fellow firefighter, began to lift the victim from the floor. As they did so, the other firefighter apparently lost his grip, causing petitioner to "jerk forward" under the weight of the victim and his gear (approximately 285 pounds), which, in turn, caused injury to petitioner's back.

It is well settled that "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom" ( Matter of O'Mahony v. DiNapoli, 157 A.D.3d 1107, 1108, 69 N.Y.S.3d 167 [2018] [internal quotation marks, ellipsis and citations omitted]; see Matter of Fanning v. DiNapoli, 140 A.D.3d 1582, 1583, 35 N.Y.S.3d 529 [2016] ; Matter of Stimpson v. Hevesi, 38 A.D.3d 979, 980–981, 830 N.Y.S.2d 856 [2007] ; Matter of McKenna v. Hevesi, 26 A.D.3d 584, 585, 807 N.Y.S.2d 716 [2006] ; see also Matter of Creegan v. DiNapoli, 172 A.D.3d 1856, 1858, 101 N.Y.S.3d 510 [2019], lv denied 34 N.Y.3d 902, 2019 WL...