Crone v. DiNapoli

201 A.D.3d 1260

162 N.Y.S.3d 516

In the Matter of Jonathan CRONE, Petitioner,

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

530807

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

Calendar Date: December 16, 2021

Decided and Entered: January 27, 2022

Paul N. Weber, Cornwall, for petitioner.

Letitia James, Attorney General, Albany (Sarah L. Rosenbluth of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, 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, a patrol sergeant for the City of Beacon Police Department, filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of a traumatic brain injury with cognitive impairment, which he sustained on November 4, 2014 when his chair allegedly broke, causing him to fall backwards and strike the wall and desk with his head. 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. Respondent upheld the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

Petitioner's burden was to demonstrate that his 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] ). 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 his injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in his ordinary job duties (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 Stancarone v. DiNapoli, 161 A.D.3d 144, 149, 76 N.Y.S.3d 238 [2018] ).

Petitioner, who was on duty in the communications office, testified that when he sat in a desk chair and leaned back, the chair continued backwards and flipped over, resulting in his injuries. More specifically, he explained that he "leaned back and the back of the chair continued to go and then it just went over." Before leaving work, petitioner inspected the chair and "noticed [a] crack in the bottom." An unidentified person placed the chair in a dumpster but it was recovered within a few days by a lieutenant in the police department, who secured the chair in an empty office and observed that the chair was broken underneath the seat. Within a month of the incident, petitioner took photos of the chair, which were received in evidence. Petitioner confirmed that the photos depicted the subject chair because "[t]he break in the chair is the same as when it occurred that night when I looked at it, or the next morning when I flipped it over." The photos depict a break or split in the metal framing of the chair. Petitioner did not know if the chair was defective before he sat in it and did not hear any crack when he leaned back and fell over. As the Hearing Officer noted, petitioner explained that "to [his] knowledge" the chair was "in proper working order" before he sat down. Certainly, petitioner was under no obligation to inspect the underside of the chair before sitting down.

In our view, the incident as described constitutes an accident. Contrary to the findings of the Hearing Officer, whether the chair was broken prior to or during the fall is of no moment, as either way petitioner was unaware of any defect. In either situation, the collapse of a chair back would be a sudden, unexpected outcome for anyone who simply sits and leans back.

The Hearing Officer's speculative observation that the chair might have been broken when it was thrown into the dumpster disregards petitioner's testimony that he observed the break in the chair metal the day of the incident. The Hearing Officer's further assumption that members of the police department may have continued to use the chair after the fall and before the photographs were taken is also unduly speculative and disregards the lieutenant's testimony that he observed that the chair was broken and secured it in an empty office. The defect in the chair frame explains the failure of the chair, which had an adjustable back designed to be leaned upon. And that is all petitioner did, he leaned back in the chair, which failed, causing his injury. Falling from a desk chair does not constitute a risk inherent in petitioner's ordinary job duties. To validate that point, we must simply look to Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 479 N.Y.S.2d 171, 468 N.E.2d 9 (1984), where the Court of Appeals held that the petitioners each sustained an accidental injury in the following circumstances: (1) where a police officer lost his balance and fell while getting up from a desk as another officer on whom he was leaning suddenly moved away, and (2) where a police officer slipped and fell on wet pavement getting into a patrol car on a rainy day ( id. at 567–568, 479 N.Y.S.2d 171, 468 N.E.2d 9 ; see Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998] ). As such, we conclude that respondent's determination is not supported by substantial evidence (see Matter of Meyer v. New York State Comptroller, 92 A.D.3d 1122, 1123, 938 N.Y.S.2d 386 [2012] ; compare Matter of Clarke v. Murray, 85 A.D.3d 1536, 1537, 926 N.Y.S.2d 717 [2011] [no evidence offered that chair was defective]; Matter of Brennan v. New York State & Local Empls. Retirement Sys., 50 A.D.3d 1374, 1376, 857 N.Y.S.2d 275 [2008] [same]).

Garry, P.J., Pritzker and Reynolds Fitzgerald, JJ., concur.

Aarons, J. (dissenting).

Because substantial evidence supports respondent's determination that the incident at issue was not an accident within the meaning of the Retirement and Social Security Law, I would confirm. Accordingly, I respectfully dissent.

Petitioner sought accidental disability retirement benefits due to injuries sustained after he leaned back on a chair and fell. 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. A hearing ensued, after which petitioner's application was denied. The Hearing Officer concluded that petitioner failed to prove that him falling from the chair constituted an accident. Respondent adopted the Hearing Officer's determination.

As the majority notes, petitioner bore the burden of proving that his disability stemmed from an accident within the meaning of the Retirement and Social Security Law (see Matter of Bohack v. DiNapoli, 197 A.D.3d 1384, 1384, 153 N.Y.S.3d 651 [2021] ; Matter of O'Brien v. DiNapoli, 196 A.D.3d 960, 961, 152 N.Y.S.3d 181 [2021] ; Matter of Schemmer v. DiNapoli, 196 A.D.3d 958, 959, 151 N.Y.S.3d 725 [2021] ; Matter of Stancarone v. DiNapoli, 161 A.D.3d 144, 146, 76 N.Y.S.3d 238 [2018] ). An accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] [internal quotation marks and citations omitted]; accord Matter of Parry v. New York State Comptroller, 187 A.D.3d 1303, 1304, 133 N.Y.S.3d 100 [2020] ). We recently reiterated that " ‘when determining whether a precipitating event was unexpected, ... courts may continue to consider whether the injured person had direct knowledge of the hazard prior to the incident or whether the hazard could have been reasonably anticipated so long as such a factual finding is based upon substantial evidence in the record’ " ( Matter of Rizzo v. DiNapoli, 201 A.D.3d 1098, 1100, 162 N.Y.S.3d 164 [2022], quoting Matter of Stancarone v. DiNapoli, 161 A.D.3d at 149–150, 76 N.Y.S.3d 238 ). "The determination of whether an accident has occurred focuses on ‘the precipitating cause of the injury, rather than on the petitioner's job assignment’ " ( Matter of O'Brien v. DiNapoli, 196 A.D.3d at 961, 152 N.Y.S.3d 181, quoting Matter of Kelly v. DiNapoli, 30 N.Y.3d at 682, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks and citation omitted]; see Matter of Stancarone v. DiNapoli, 161 A.D.3d at 147, 76 N.Y.S.3d 238 ). "[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 Kelly v. DiNapoli, 30 N.Y.3d at 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [internal quotation marks and citation omitted]; accord 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] ; Matter of Parry v. New York State Comptroller, 187 A.D.3d at 1304, 133 N.Y.S.3d 100 ; Matter of Bell v. DiNapoli, 168 A.D.3d 1206, 1207, 91 N.Y.S.3d 598 [2019] ).

The Hearing...