Hamblin v. Dinapoli

213 N.Y.S.3d 570

In the Matter of Adam HAMBLIN, Petitioner,

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

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

Calendar Date: June 5, 2024

Decided and Entered: July 11, 2024

Schwab & Gasparini, PLLC, White Plains (James A. Resila of counsel), for petitioner.

Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.

Before: Pritzker, J.P., Lynch, Ceresia, Fisher and Mackey, JJ.

MEMORANDUM AND JUDGMENT

Pritzker, J.P.

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 detective and paramedic, applied for accidental disability retirement benefits claiming that he was permanently incapacitated from performing his job duties as a result of injuries sustained in three incidents that occurred in July 2007, February 2012 and June 2017.¹ Petitioner’s application was denied upon a finding that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law § 363. Following a hearing, the Hearing Officer upheld the denial of the application, finding that the underlying incidents were either a risk inherent in the performance of his duties or foreseeable and, therefore, did not constitute accidents for purposes of accidental disability retirement. Respon- dent adopted the Hearing Officer’s decision, and this CPLR article 78 proceeding ensued.

[1–4] "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 Bornholz v. DiNapoli, 225 A.D.3d 1079, 1080, 207 N.Y.S.3d 254 [3d Dept. 2024] [internal quotation marks and citations omitted]; see Matter of Compagnone v. DiNapoli, 213 A.D.3d 7, 8, 182 N.Y.S.3d 352 [3d Dept. 2023]). For purposes of accidental disability retirement benefits, "an accident is defined as ‘a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ " (Matter of Kubala v. New York State & Local Retirement Sys., 220 A.D.3d 993, 993, 197 N.Y.S.3d 606 [3d Dept. 2023], quoting Matter of Kenny v. Di-Napoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008]). "An 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 Rizzo v. DiNapoli, 39 N.Y.3d 991, 992, 182 N.Y.S.3d 1, 202 N.E.3d 559 [2022] [internal quotation marks and citations omitted]; see Matter of Cazzari v. DiNapoli, 224 A.D.3d 1075, 1076, 206 N.Y.S.3d 405 [3d Dept. 2024]; Matter of Kubala v. New York State & Local Retirement Sys., 220 A.D.3d at 993–994, 197 N.Y.S.3d 606; Matter of Flannelly v. Gardner, 210 A.D.3d 1265, 1265–1266, 178 N.Y.S.3d 601 [3d Dept. 2022]).

[5] Regarding the July 14, 2007 incident, petitioner testified that he was in his patrol vehicle when he saw a suspect climbing a fence. According to petitioner, when he stepped out of his vehicle in pursuit of the suspect, whom he ultimately placed in custody, his right leg got stuck in a crack or uneven pavement resulting in an injury to his right knee. "Pursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Chern v. DiNapoli, 225 A.D.3d 1088, 1090, 207 N.Y.S.3d 720 [3d Dept. 2024] [internal quotation marks and citations omitted]; see Matter of Van Wyen v. New York State Comptroller, 215 A.D.3d 1217, 1219, 189 N.Y.S.3d 295 [3d Dept. 2023]; Matter of Castellano v. DiNapoli, 197 A.D.3d 1478, 1480, 154 N.Y.S.3d 170 [3d Dept. 2021]; Matter of Grail v. DiNapoli, 196 A.D.3d 962, 964–965, 152 N.Y.S.3d 183 [3d Dept. 2021]). Additionally, the reports related to the incident, which respondent credited, make no mention of any defect in the pavement. Given the discrepancy in petitioner’s testimony and the contemporaneous reports, and according deference to respondent’s credibility assessment (see Matter of Zanchelli v. DiNapoli, 198 A.D.3d 1058, 1059, 156 N.Y.S.3d 439 [3d Dept. 2021]), substantial evidence supports respondent’s determination that petitioner’s injury arose from an inherent risk of his duties as a police officer, and, therefore, the incident did not constitute an accident for purposes of the Retirement and Social Security Law (see Matter of Van Wyen v. New York State Comptroller, 215 A.D.3d at 1219, 189 N.Y.S.3d 295; Matter of Grall v. DiNapoli, 196 A.D.3d at 964–965, 152 N.Y.S.3d 183; Matter of Quartucio v. DiNapoli, 110 A.D.3d 1336, 1337, 973 N.Y.S.2d 841 [3d Dept. 2013]; Matter of Pappalardo v. Hevesi, 34 A.D.3d 1021, 1021–1022, 823 N.Y.S.2d 634 [3d Dept. 2006]).

[6] Nor are we persuaded that the February 17, 2012 incident was a compensable accident. Petitioner testified that on the day of the incident he was working as a police paramedic assigned to the vehicle that responds to calls with the ambulance. Due to staffing issues, the police officer who was assigned to the ambulance was unfamiliar with the equipment needed on the ambulance. As such, petitioner inspected the equipment and inventory in the ambulance to ensure that it was ready for the next emergency call, which petitioner testified was part of his duties. After entering the ambulance from the side door and inventorying the interior of the ambulance, petitioner testified that he stepped out of the rear door of the ambulance to inspect the equipment in the exterior compartment. According to petitioner, when he exited the ambulance, he expected that the step – which was usually folded down except when loading the stretcher in or out of the ambulance – would be there. The step, however, was folded up, causing petitioner to fall to the ground and injure his elbow. By his own admission, petitioner testified that he had exited and entered an ambulance so many times that he was "complacent" on the day at issue and did not look down to see if the step was opened nor did he turn a light on in the back of the ambulance despite it being midnight and dark outside. Further, petitioner’s application for accidental disability retirement benefits, as well as the contemporaneous injury report, seemingly contradict petitioner’s testimony, as they indicate that the incident occurred because petitioner "lost [his] footing exiting [the] vehicle" or "slipped on the ambulance step." In view of the foregoing, respondent’s conclusion is supported by substantial evidence given that petitioner was engaged in his ordinary job duties of inspecting the supplies and equipment on the ambulance and that his "injury was the ordinary and foreseeable result of his own inattention or misstep" (Matter of Quartucio v. DiNapoli, 110 A.D.3d at 1338, 973 N.Y.S.2d 841 [internal quotation marks and citations omitted]; see Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998]; compare Matter of Lola v. DiNapoli, 164 A.D.3d 1513, 83 N.Y.S.3d 372 [3d Dept. 2018]).

[7] We. reach a different conclusion, however, regarding the incident on June 22, 2017, during which the retractable portion of the stretcher jammed causing instantaneous pain and injury to petitioner’s shoulder and neck. Specifically, petitioner testified that when he squeezed the handle to extend the retractable head portion of the stretcher and pulled, which petitioner noted usually required "a little bit of force to push it in and out," he was able to extend it a little bit before it unexpectedly jammed – something that petitioner testified had never happened before. Petitioner testified that thereafter it took four firefighters banging on the handle with tools to finally extend the head section to the proper position. Although extending the retractable head portion of the stretcher was no doubt part of petitioner’s job duties, the precipitating external...