Stancarone v. DiNapoli

161 A.D.3d 144

76 N.Y.S.3d 238

In the Matter of Joseph STANCARONE, Petitioner,

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

523755

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

Calendar Date: February 21, 2018

Decided and Entered: April 26, 2018

Bartlett LLP, White Plains (Jason D. Lewis of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

OPINION AND JUDGMENT

McCarthy, 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 officer, applied for accidental disability retirement benefits pursuant to Retirement and Social Security Law § 363, alleging that he was permanently incapacitated from performing his job duties as the result of a slip and fall that occurred while he was on duty. The fall occurred while petitioner was descending exterior stone stairs as he was checking the premises of a vacant home. The application was initially denied and petitioner requested a hearing and redetermination. Following a hearing, the Hearing Officer upheld the denial, concluding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Respondent adopted the Hearing Officer's decision and this CPLR article 78 proceeding ensued.

Respondent has the exclusive authority to determine any applications for retirement benefits (see Retirement and Social Security Law § 74[b] ; Matter of Gorey v. New York State Comptroller , 83 A.D.3d 1363, 1364, 921 N.Y.S.2d 706 [2011] ). As an applicant for accidental disability retirement benefits, "[p]etitioner bears the burden of demonstrating that his disability arose out of an accident as defined by the Retirement and Social Security Law, and [respondent's] determination in that regard will be upheld if supported by substantial evidence" ( Matter of Bodenmiller v. DiNapoli , 157 A.D.3d 1120, 1121, 69 N.Y.S.3d 723 [2018] [internal quotation marks and citations omitted] ). Several decades ago, the Court of Appeals explained that, 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 Kenny v. DiNapoli , 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] ). Recently, the Court of Appeals reaffirmed that standard, stating that, to establish their entitlement to accidental disability retirement benefits, petitioners must "demonstrate that their injuries were caused by sudden, unexpected events that were not risks inherent in their ordinary job duties" ( Matter of Kelly v. DiNapoli , 30 N.Y.3d 674, 678, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] ). To be deemed accidental, "an injury must not have been the result of activities undertaken in the ordinary course of one's job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed" ( Matter of Schoales v. DiNapoli , 132 A.D.3d 1184, 1185, 18 N.Y.S.3d 765 [2015] [internal quotation marks and citation omitted]; accord Matter of Lester v. New York State Comptroller , 143 A.D.3d 1038, 1038, 40 N.Y.S.3d 199 [2016] ). Stated simply, to establish that injuries were due to an accident in this context, a petitioner must prove that the precipitating event was sudden, unexpected and not a risk of the work ordinarily performed (see Matter of Kelly v. DiNapoli , 30 N.Y.3d at 678, 685, 686, 70 N.Y.S.3d 881, 94 N.E.3d 444 ).

We acknowledge that the standard to qualify for accidental disability retirement benefits has not always been clearly stated, with part of the confusion stemming from the use of imprecise and differing language in prior cases. Some of the phrases that have been used are overlapping or slightly different ways of saying the same thing, while others that we regularly meld together represent separate concepts. For example, this Court has stated that "[i]njuries sustained due to conditions that are readily observable and that could be reasonably anticipated, or attributable to an employee's own misstep or inattention, do not constitute accidents within the context of the Retirement and Social Security Law" ( Matter of Manning v. DiNapoli , 150 A.D.3d 1382, 1383, 54 N.Y.S.3d 216 [2017] [internal quotation marks and citation omitted]; see Matter of Lamb v. DiNapoli , 139 A.D.3d 1312, 1313–1314, 33 N.Y.S.3d 482 [2016] ). That single statement contains four separate phrases—readily observable, reasonably anticipated, attributable to a misstep and attributable to inattention—allegedly addressing the standard. We will now address these various iterations of the standard in an attempt to clarify how to determine whether an injury arose out of an accident.

In its most recent pronouncement on the issue, the Court of Appeals instructed that requiring a petitioner to "demonstrate that a condition was not readily observable in order to demonstrate an ‘accident’ is inconsistent with [its] prior case law" ( Matter of Kelly v. DiNapoli , 30 N.Y.3d at 685 n. 3, 70 N.Y.S.3d 881, 94 N.E.3d 444 ). Therefore, our Court's prior cases placing such a burden upon petitioners should no longer be followed.

Although we typically link together language regarding injuries being attributable to an employee's own misstep or inattention (see e.g. Matter of Zekus v. Gardner , 155 A.D.3d 1297, 1297, 64 N.Y.S.3d 409 [2017] ; Matter of Manning v. DiNapoli , 150 A.D.3d at 1383, 54 N.Y.S.3d 216), they are separate and discrete concepts. For example, if a person falls down stairs due to tripping over his or her own feet or due to misjudging the distance between steps, that is a classic misstep situation; a fall due to one's own clumsiness does not constitute an accident because there is no external precipitating accidental event (see Matter of Starnella v. Bratton , 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 [1998] ["(a) fall down the stairs as a result of one's own misstep, without more, is not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law"]; Matter of West v. DiNapoli , 79 A.D.3d 1565, 1566, 914 N.Y.S.2d 358 [2010] ; Matter of Tomita v. DiNapoli , 66 A.D.3d 1071, 1071–1072, 886 N.Y.S.2d 250 [2009] ; Matter of McCabe v. Hevesi , 38 A.D.3d 1035, 1036, 831 N.Y.S.2d 573 [2007] ). A fall due to inattention may or may not be the same as a misstep. If the inattention simply led to the person misjudging the depth of a step or curb, that would be synonymous with a misstep. However, if the inattention resulted in the person failing to notice a slippery substance, which substance caused the fall, the inattention would be similar to a failure to recognize a condition that was readily observable had he or she paid proper attention. We conclude that, pursuant to the recent direction in Matter of Kelly v. DiNapoli , 30 N.Y.3d at 385 n. 3, 70 N.Y.S.3d 881, 94 N.E.3d 444, where an injury is caused by the latter type of inattention, akin to a condition being readily observable, the injury may constitute an accident.

More challenging is the concept of a precipitating event being reasonably anticipated. An incident would be expected—and, thus, not an accident—if it could be reasonably anticipated because the person had direct knowledge of the hazard (see Matter of Lang v. Kelly , 21 N.Y.3d 972, 973, 970 N.Y.S.2d 742, 992 N.E.2d 1085 [2013] ; Matter of Kenny v. DiNapoli , 11 N.Y.3d at 875, 874 N.Y.S.2d 399, 902 N.E.2d 952 ; Matter of Suppa v. DiNapoli , 101 A.D.3d 1348, 1349, 956 N.Y.S.2d 281 [2012] ). Similarly, an injury may be expected and, therefore, not accidental, "where the hazard presented was one that the [injured person] could have reasonably anticipated, even if he or she did not actually see it until after sustaining his or her injury" ( Matter of Bleeker v. New York State Comptroller , 84 A.D.3d 1683, 1684, 923 N.Y.S.2d 788 [2011] [internal quotation marks, brackets and citation omitted], lv denied 17 N.Y.3d 709, 930 N.Y.S.2d 553, 954 N.E.2d 1179 [2011] ; see Matter of Martins v. DiNapoli , 156 A.D.3d 1031, 1032, 66 N.Y.S.3d 366 [2017] ; Matter of Butrico v. New York State Comptroller , 97 A.D.3d 1033, 1034, 949 N.Y.S.2d 239 [2012] ; Matter of Avery v. McCall , 308 A.D.2d 677, 678, 764 N.Y.S.2d 658 [2003] ). To deny benefits on the ground that the hazard could have been reasonably anticipated, such a finding "must be supported by the record and not rest merely upon speculation" ( Matter of Tierney v. New York State Comptroller , 90 A.D.3d 1215, 1215–1216, 933 N.Y.S.2d 772 [2011] ; see Matter of Sammon v. DiNapoli , 97 A.D.3d 952, 953, 948 N.Y.S.2d 719 [2012] ; Matter of Cantone v. McCall , 289 A.D.2d 863, 864, 734 N.Y.S.2d 362 [2001] ; compare Matter of Dicioccio v. DiNapoli , 124 A.D.3d 1170, 1171, 3 N.Y.S.3d 162 [2015] ; Matter of Messina v. New York State & Local Employees' Retirement Sys. , 102 A.D.3d 1068, 1068–1069, 959 N.Y.S.2d 289 [2013], lv denied 21 N.Y.3d 855, 967 N.Y.S.2d 688, 989 N.E.2d 970 [2013] ; Matter of Ruggiero v. DiNapoli , 85 A.D.3d 1282, 1283, 924 N.Y.S.2d 221 [2011], lv denied 17 N.Y.3d 711, 930 N.Y.S.2d 556, 954 N.E.2d 1182 [2011] ; Matter of Bleeker v. New York State Comptroller , 84 A.D.3d at 1684, 923 N.Y.S.2d 788 ). In other words, for an event to be expected, the record must contain specific information from which it could be found that a person in the petitioner's position and location could or should have reasonably anticipated the hazard (see Matter of Messina v. New York State & Local...