Torres v. The N.Y.C. Emps' Ret. Sys.

2023 NY Slip Op 51420(U)

Royce Torres, Petitioner, v. The New York City Employees' Retirement System, THE BOARD OF TRUSTEES of the New York City Employees' Retirement System, THE MEDICAL BOARD of the New York City Employees' Retirement System, and THE CITY OF NEW YORK, Respondents.

Index No. 530625/2022

Supreme Court, Kings County

December 4, 2023

Unpublished Opinion

Petitioner's Counsel:Philip H. Seelig, Esq.

Seelig Law Offices, LLC

Respondents' Counsel:Hon. Sylvia Hinds-Radix

Corporation Counsel of the City of New York

HON INGRID JOSEPH, J.S.C.

The following e-filed papers considered herein: NYSCEF Doc. Nos.

Notice of Petition/Petition/Memorandum of Law/Exhibits Annexed....1-10

Answer/Memorandum of Law/Exhibits Annexed...15-30

Memorandum of Law in Reply..32

In this matter, Petitioner Royce Torres ("Petitioner") moves by petition for an order annulling Respondents the New York City Employees' Retirement System ("NYCERS"), the Board of Trustees of the New York City Employees' Retirement System, the Medical Board of the New York City Employees' Retirement System, and the City of New York's (collectively "Respondents") order and decision, dated July 15 2022, denying Petitioner an Accidental Disability Retirement ("ADR") pursuant to New York Retirement and Social Security Law ("RSSL") § 605-b. Petitioner alleges that Respondents' denial of his application for ADR was arbitrary, capricious, and unlawful with respect to the Constitution of the United States and New York statutes and regulations. In opposition, NYSCER argues that the action by Respondents in denying the application for ADR was in all respects lawful and proper and in accord with all applicable statutes and law.

Petitioner joined the New York City Department of Sanitation ("DOS") as an employee on October 18, 1999. On January 28, 2020, at around 7:25 am, Petitioner alleged that he suffered injuries when he "tripped on a crater size hole on the street right off the sidewalk." Petitioner alleged that the accident occurred while he was holding a bag of refuse and walking to the back of the DOS truck. This allegedly caused injuries to Petitioner's neck, lower back, and ribs. Petitioner underwent a cervical fusion on July 29, 2020; however, his cervical spine symptoms did not improve.

On or about January 26, 2021, Petitioner applied for ADR benefits. The NYCERS Medical Board then reviewed this application and determined that Petitioner was unable to perform his DOS duties due to his injuries from the trip and fall on January 28, 2020. However, the NYCERS Medical Board determined that the injuries Petitioner sustained were not accidental in nature. The Medical Board stated that, "Mr. Torres was working his usual route and should have been aware of his surroundings. The hole by his description is very large and should have been visible."

Petitioner submitted a Memorandum of Law to the Board of Trustees asserting that tripping on a hole in the street was not a normal risk associated with his employment for the DOS, which he asserts is supported by several cases. Nonetheless, the Board of Trustees denied Petitioner's ADR application and stated that "carrying a garbage bag and having it obscure your vision is an ordinary part of your responsibilities and having uneven or broken pavement on the street of New York I don't believe is a sudden, unexpected, out of ordinary event."

In this instant petition, Petitioner argues that his injuries were accidental in nature because he was unaware of the hole in the street and tripped and fell suddenly and unexpectedly. Petitioner also asserts that it was not an inherent part of his employment as a member of the DOS to inspect the streets on which he walked, and that the existence of the hole was totally unrelated to his duties. Petitioner contends that Respondents have failed to award him with ADR, which he is entitled to due to the circumstances of the injuries that he received while working.

In opposition, Respondents assert that their determination that Petitioner's injuries were not caused by an accident under RSSL § 605-b was supported by substantial evidence. Respondents contest that they accurately concluded that walking into a large and visible hole in the street is not an "unexpected or an out-of-the ordinary mischance" that would meet the criteria of being an accident. Respondents also assert that Petitioner was willfully negligent in failing to see an open and obvious roadway condition.

Respondents do not dispute that Petitioner is physically incapacitated or that Petitioner was injured while on the job. ^[1] Consequently, the only issue before the Court is whether Respondents properly concluded that Petitioner's injuries were not the result of an accident.

In determining an Article 78 proceeding, the court must consider whether the challenged determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). Under this standard, courts will review the record to find whether the challenged determination had a rational basis (i.e., whether there was some objective factual basis) (see Matter of Gorecki v New York State Dep't of Motor Vehicles, 201 A.D.3d 802, 803 [2d Dept 2022]). In the context of disability cases, the agency's determination must be founded on "some credible evidence" (Borenstein v New York City Employees' Ret. Sys., 88 N.Y.2d 756, 760 [1996] [internal quotation marks and citations omitted]), which is "not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Meyer v Bd. of Trustees of the New York City Fire Dep't, Article 1-B Pension Fund by Safir, 90 N.Y.2d 139, 147 [1997] [internal citations omitted]).

For a DOS member to qualify for Accidental Disability Retirement, the member must meet the criteria listed in Section 605-b of Article 15 of the Retirement and Social Security Law. The member must show that they are "physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service while actually a member of NYCERS" (RSSL § 605-b [b] [1]). The Court of Appeals has defined the term "accident" as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Lichtenstein v Board of Trustees of the Police Pension Fund, 57 N.Y.2d 1010 [1982] [internal quotation marks and citation omitted]). Though the phrase "willful negligence" is not defined in the Retirement and Social Security Law, it is "generally thought to entail a 'conscious disregard of the consequences of [one's] actions'" (Rizzo v DiNapoli, 39 N.Y.3d 991, 1002 [2022], quoting Robinson v New York State & Loc. Police & Fire Ret. Sys., 192 A.D.2d 951, 952 [3d Dept 1993]). The proper inquiry is whether there was a "precipitating accidental event... which was not a risk of the work performed" (McCambridge v McGuire, 62 N.Y.2d 563, 568 [1984]).

The Court first addresses Respondents' contention that the hole was not an unexpected precipitating event rising to an accident because it was reasonably anticipated or readily observable. However, to establish that an accident occurred, the petitioner is not required to show that the precipitating accidental event or condition was not readily observable (Kelly v DiNapoli, 30 N.Y.3d 674, 685 n 3 [2018]). ^[2] In support of their contention, Respondents argue that (a) the fall occurred on Petitioner's usual route, (b) Petitioner lacked awareness of his surroundings and failed to recognize the condition, and (c) encountering a pothole is an inherent risk of working on the streets. With respect to Respondents first and second arguments, the standard is not whether the condition was readily observable (id.; see Como v New York State Comptroller, 202 A.D.3d 1427, 1428 [3rd Dept 2022] ["The Hearing Officer's assessment that petitioner 'could have avoided this hazard by merely looking down' misapplies the governing standard"]). Though this fall occurred on his usual route, Petitioner stated that he had never seen the hole before. He further stated that there is almost always a car parked at that specific location. There was no evidence presented to establish that Petitioner knew of the existence of the hole immediately prior to his fall. ^[3] There was also no evidence rebutting Petitioner's testimony that he had never sustained injuries near this route. Thus, the Court finds any arguments as to the location of the fall happening on Petitioner's usual route or that he should have been aware unconvincing and contrary to well-established caselaw. Accordingly, the record establishes that the pothole was a precipitating accidental event.

The Court next addresses Respondents' third argument that tripping over such roadway condition is an inherent risk of the work performed by Petitioner. Multiple courts have found in similar instances that it is not (see Pratt v Regan, 68 N.Y.2d 746 [1986] ["Catching a heel on a running board and thus losing balance may be a risk of the work performed [by a firefighter], but coming down hard upon the other foot in a pothole is not"]; Lanni v N.Y.C Employees' Retirement System, 189 A.D.3d 841 [2d Dept 2020] [fall on a loose and broken sidewalk was an accident]; Finazzo v Safir, 273 A.D.2d 75, 75 [1st Dept 2000] [fall was accidental when petitioner stepped out of his car and while walking towards the station house, tripped in a construction hole]; Crews v New York City Employees' Ret. Sys., 79 Misc.3d 1238 [A] [Sup Ct, Kings County 2023] [sanitation worker's fall on uneven pavement is sudden, unexpected mischance]; Cuccia v New York Employees' Ret. Sys., 62...