McGoey v. DiNapoli

194 A.D.3d 1296

149 N.Y.S.3d 581

In the Matter of Bernard MCGOEY, Petitioner,

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

532333

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

Calendar Date: April 28, 2021

Decided and Entered: May 20, 2021

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

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND JUDGMENT

Reynolds Fitzgerald, 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.

In 2017, petitioner – a firefighter – filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to his right shoulder that, in turn, were sustained during seven different incidents occurring between 2006 and 2017. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law § 363. At the requested hearing and redetermination that followed, petitioner withdrew four of the seven incidents, and the sole issue distilled to whether the incidents occurring in June 2006, January 2009 and March 2010 qualified as accidents. The Hearing Officer denied petitioner's application, finding, among other things, that the cited incidents occurred during the course of petitioner's routine employment duties and were risks inherent in the performance of those duties. Respondent upheld the Hearing Officer's determination, and petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.

We confirm. "As the applicant, petitioner bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and [respondent's] determination on that point will be upheld if supported by substantial evidence in the record as a whole" ( Matter of Parry v. New York State Comptroller, 187 A.D.3d 1303, 1304, 133 N.Y.S.3d 100 [2020] [citations omitted]; see Matter of Harris v. New York State & Local Retirement Sys., 191 A.D.3d 1085, 1085, 141 N.Y.S.3d 539 [2021] ; Matter of Piatti v. DiNapoli, 187 A.D.3d 1274, 1275, 131 N.Y.S.3d 436 [2020] ). For purposes of the Retirement and Social Security Law, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] [internal quotation marks and citations 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] ; Matter of Parry v. New York State Comptroller, 187 A.D.3d at 1304, 133 N.Y.S.3d 100 ). Notably, "[a]n 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 Harris v. New York State & Local Retirement Sys., 191 A.D.3d at 1085, 141 N.Y.S.3d 539 [internal quotation marks and citations omitted]; see Matter of Parry v. New York State Comptroller, 187 A.D.3d at 1304, 133 N.Y.S.3d 100 ; Matter of Angelino v. New York State Comptroller, 176 A.D.3d 1376, 1378, 111 N.Y.S.3d 410 [2019] ).

With respect to the June 2006 incident, the record reflects that petitioner was engaged in overhauling a structure fire, i.e., looking for hot spots in a charred and smoky room by using a hooked pole to tear down the ceiling of the structure. As petitioner moved backwards along the path that he initially used to enter the room, he fell over two boxes and sustained injuries to his right shoulder, right arm and neck. Although petitioner testified that the boxes were not there when he first entered the room and that he did not see them prior to his fall, he acknowledged that, although he was focused on the ceiling above him, he was "looking" behind him "with [his] feet" by utilizing "a slide-step motion" as he moved backwards.

Turning to the January 2009 incident, petitioner responded to a residential structure fire in the middle of the night and encountered heavy smoke and fire coming from the front door and side windows of the residence. As petitioner attempted to free two hose lines that had frozen together due to the extreme cold, he was struck on his right shoulder, right arm and neck by a large piece of ice that had dislodged from an awning or overhang located approximately 20 feet above where petitioner was standing. Petitioner acknowledged that, in extreme cold, water can freeze on the exterior of a building and form ice within a matter of minutes, that icicles form on buildings during the winter and that it is not out of the ordinary for icicles to fall off of buildings. Petitioner suggested, however, that the water used to suppress the fire was being sprayed inside of the structure – the implication being that the offending piece of ice did not form on the building's exterior during the course of the firefighting efforts.

The final incident occurred in March 2010 when petitioner slipped or stepped in what he surmised was a depression in the pavement of the alleyway adjacent to the structure fire to which he was responding – causing him to lose his footing and experience discomfort in his right shoulder and right arm. At the time of the incident, multiple hose lines were being used to fight the fire, and petitioner described the positioning of those hose lines as "look[ing] like spaghetti."¹ According to petitioner, he was "looking down and watching...