Margolies v. DiNapoli

210 A.D.3d 1245

178 N.Y.S.3d 604

In the Matter of Douglas MARGOLIES, Petitioner,

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

533543

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

Calendar Date: October 14, 2022

Decided and Entered: November 17, 2022

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., Egan Jr., Clark, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Ceresia, 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 claiming that he was permanently disabled as a result of an injury to his left eye that was sustained during a mandatory firefighter training exercise in October 2015. 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 and he thereafter retired, receiving performance of duty retirement benefits. Following a hearing and redetermination, the Hearing Officer denied petitioner's application, finding that the underlying incident was not an accident as it 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 Bohack v. DiNapoli, 197 A.D.3d 1384, 1384, 153 N.Y.S.3d 651 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]). 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. 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 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; accord Matter of Bohack v. DiNapoli, 197 A.D.3d at 1384, 153 N.Y.S.3d 651 ).

Petitioner testified that, as part of his standard duties as a firefighter, he engaged in training exercises at the training center several times a year that included live-fire search and rescue operation drills. The drills involve entering a burning building where controlled fires were set, reducing visibility to zero, climbing stairs to a second floor and locating and removing a mannequin from the building. On the day in question, petitioner was engaged in such a drill, ascending a staircase on his hands and knees, followed by two other training firefighters, when his eye was injured by a firefighter from another fire company descending the stairs. According to the accident report prepared that day by the deputy chief to whom petitioner reported the incident, which petitioner signed, petitioner recounted that he was injured in a "collision with fellow firefighters" during the live-fire training exercises, a description he acknowledged providing during the hearing; petitioner confirmed that it was normal to bump into things during such zero-visibility exercises. Petitioner testified, in...