Flannelly v. Gardner

210 A.D.3d 1265

178 N.Y.S.3d 601

In the Matter of John FLANNELLY, Petitioner,

v.Colleen C. GARDNER, as Executive Deputy Comptroller of the State of New York, et al., Respondents.

534791

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

Calendar Date: October 14, 2022

Decided and Entered: November 17, 2022

John F. Clennan, Ronkonkoma, for petitioner.

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

Before: Garry, P.J., Egan Jr., Clark, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Fisher, 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 Comptroller denying petitioner's application for accidental disability retirement benefits.

Petitioner, a police sergeant, applied for accidental disability retirement benefits alleging that, when he was on patrol duty in 2015 and responded to a medical emergency of a possible drug overdose at a private residence, he was unexpectedly pushed by an individual and fell, sustaining injuries to his back. Petitioner's initial application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing, the Hearing Officer denied petitioner's application, finding, among other things, that the incident was not an accident as there was no unexpected event that was not an inherent risk of petitioner's job duties. Respondent Comptroller upheld the Hearing Officer's decision, and this CPLR article 78 proceeding ensued.

We confirm. 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 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 Roberts v. DiNapoli, 117 A.D.3d 1166, 1166, 984 N.Y.S.2d 491 [3d Dept. 2014] ). In determining whether an incident constitutes an accident, "the dispositive question is whether injury was caused by a precipitating accidental event which was not a risk of the work performed " ( Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 684, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] [internal quotation marks, ellipsis and citations omitted]; see Matter of Fulton v. New York State Comptroller, 122 A.D.3d 983, 983–984, 996 N.Y.S.2d 388 [3d Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649411 [2015] ). In other words, "[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 Alente v. New York State Comptroller, 205 A.D.3d 1295, 1296, 169 N.Y.S.3d 705 [3d Dept. 2022] [internal quotation marks and citations omitted]). It is the petitioner's burden to demonstrate that the injury-producing event is an accident, and the Comptroller's determination in that regard will be upheld if supported by substantial evidence (see Matter of Buckshaw v. Dinapoli, 169 A.D.3d 1139, 1140, 93 N.Y.S.3d 722 [3d Dept. 2019], lv denied 33 N.Y.3d 904, 2019 WL 2041641 [2019] ; Matter of Buckley v. DiNapoli, 166 A.D.3d 1265, 1266, 87 N.Y.S.3d 732 [3d Dept. 2018] ).

Petitioner testified that, on the night of the incident, he was on patrol duty and responded, along with another police officer, to a call for a possible drug overdose at a residential address. After the aided individual was removed from the home to an ambulance, the individual's father asked petitioner about the identity of a person sitting in a car in the driveway. Petitioner approached the vehicle and, upon inquiry, the subject told petitioner that he lived at the residence – which, upon returning and relaying that information to the father, the father refuted. Petitioner then returned to the vehicle, at which point the subject exited the vehicle and, according to petitioner's testimony, suddenly and unexpectedly pushed both him and the other police officer, causing petitioner to fall over the raised blocks on the driveway and sustain an injury to his back. The written report of the incident, which was signed by petitioner, differed with regard to the confrontation with the subject in that it...