Castellano v. DiNapoli

197 A.D.3d 1478

154 N.Y.S.3d 170

In the Matter of Vito CASTELLANO, Petitioner,

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

532656

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

Calendar Date: September 14, 2021

Decided and Entered: September 30, 2021

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

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND JUDGMENT

Colangelo, 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 police officer, filed an application for accidental disability retirement benefits alleging that he was permanently disabled as the result of four incidents occurring between 2003 and 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incidents in question did not constitute accidents within the meaning of Retirement and Social Security Law § 363. At the hearing and redetermination that followed, petitioner, who had been granted performance of duty disability retirement benefits, withdrew two of the four incidents, leaving the Hearing Officer to determine only whether the March 3, 2003 and/or July 7, 2007 incidents qualified as accidents. The Hearing Officer denied petitioner's application, finding that petitioner was engaged in routine employment duties at the times in question and that the hazards arising therefrom could have been reasonably anticipated. Respondent adopted the Hearing Officer's findings and conclusions, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

As the party seeking benefits, "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] ; 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] ). As relevant here, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Matter of Kenny v. Di-Napoli, 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] ). Thus, "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 O'Mahony v. DiNapoli, 157 A.D.3d 1107, 1108, 69 N.Y.S.3d 167 [2018] ).

With respect to the July 2007 incident, petitioner testified that he was providing support for a canine officer, who was attempting to track certain individuals through a wooded area. The canine led his handler and petitioner down a steep ravine that was covered with trees, vines, foliage and rocks. Petitioner negotiated this portion of the trek without incident. When the canine lost the scent, petitioner and the handler began walking back up the slope, at which point petitioner slipped and struck his knee on a large rock that was obscured by foliage. Petitioner testified that it was customary for a police officer to accompany a canine handler who was engaged in suspect apprehension, and he acknowledged that his regular patrol duties could require him to pursue suspects into a wooded area.

Petitioner admittedly was assisting in the pursuit of suspects, which clearly "is an ordinary employment duty of a police officer" ( Matter of Melendez v. New York State Comptroller, 54 A.D.3d 1128, 1129, 863 N.Y.S.2d 844 [2008], lv denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ; see Matter of Scofield v. DiNapoli, 125 A.D.3d 1086, 1087, 3 N.Y.S.3d 452 [2015] ; see also Matter of Sweeney v. New York State Comptroller, 86 A.D.3d 893, 893–894, 927 N.Y.S.2d 483 [2011] ). Additionally, having accompanied the canine handler down the slope of the ravine, petitioner was well aware of the terrain and could have reasonably anticipated the hazards posed thereby (see Matter of Roth v. DiNapoli, 105 A.D.3d 1183, 1184, 963 N.Y.S.2d 441 [2013] ; see also Matter of Penkalski v. McCall, 292 A.D.2d 735, 736, 738 N.Y.S.2d 763 [2002] ) – even if he did not see the offending rock prior to his fall (see generally Matter of Scofield v. DiNapoli, 125 A.D.3d at 1087, 3 N.Y.S.3d 452 ). Accordingly, substantial evidence supports respondent's finding that this incident did not constitute an accident.

We reach a contrary conclusion, however, regarding the March 2003 incident. Petitioner testified that, while patrolling his assigned area on the evening in question, he observed a group of youths congregating in a local parking lot. Consistent with his patrol duties, petitioner pulled into what he described as the poorly illuminated parking lot with the intention of instructing the group to disperse. As petitioner exited his vehicle, he slipped on what he later described as black ice and sustained injuries. Petitioner testified that, although it was cold and blustery at the time of his fall, it was not raining or snowing, and he did not recall any precipitation occurring in the days prior to the incident. As petitioner was focused on "[o]bserving the scene," he also did not recall looking down at the surface of the parking lot prior to exiting his patrol vehicle.

To be sure, "[a] slip and fall occasioned by a hazardous condition that could have been reasonably anticipated has been found not to be accidental" ( Matter of Greco v. DiNapoli, 123 A.D.3d 1366, 1367, 999 N.Y.S.2d 274 [2014] ) – particularly where, as here, the applicant admittedly was not focused upon the surface conditions underfoot (see id. at 1368, 999 N.Y.S.2d 274 ; Matter of Sweeney v. New York State Comptroller, 86 A.D.3d at 894, 927 N.Y.S.2d 483 ). Similarly, there is no dispute that petitioner's routine duties as a police officer necessarily exposed him to, among other things, inclement weather and other challenging conditions, together with the ordinary risks attendant thereto (see Matter of Sikoryak v. DiNapoli, 104 A.D.3d 1042, 1043, 961 N.Y.S.2d 601 [2013] ). That said, the record does not demonstrate either that it was actively precipitating at or near the time of petitioner's fall (compare Matter of Rosenbergen...