Tully v. Gardener

222 A.D.3d 1163

200 N.Y.S.3d 810

In the Matter of Brian TULLY, Petitioner,

v.Colleen C. GARDENER, as Executive Deputy Comptroller, et al., Respondents.

CV-23-0551

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

Calendar Date: November 13, 2023

Decided and Entered: December 14, 2023

John F. Clennan, Ronkonkoma, for petitioner.

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

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

MEMORANDUM AND JUDGMENT

Lynch, 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 Executive Deputy Comptroller denying petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer, filed an application for accidental disability retirement benefits stemming from an injury that he sustained while responding to an emergency in October 2019. His application was denied upon the basis that the incident giving rise to his injuries did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing, a Hearing Officer upheld the denial upon the same reasoning, and respondent Executive Deputy Comptroller subsequently adopted the Hearing Officer's decision. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. It was petitioner's burden to "demonstrat[e] 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 Karst v. DiNapoli, 167 A.D.3d 1215, 1216, 89 N.Y.S.3d 751 [3d Dept. 2018] ; see Matter of Little v. DiNapoli, 85 A.D.3d 1273, 1274, 924 N.Y.S.2d 632 [3d Dept. 2011] ). An accident, for purposes of the Retirement and Social Security Law, is defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018] [internal quotation marks and citations omitted]; see Matter of Berman v. DiNapoli, 208 A.D.3d 1568, 1569, 175 N.Y.S.3d 744 [3d Dept. 2022] ). "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 Compagnone v. DiNapoli, 213 A.D.3d 7, 8, 182 N.Y.S.3d 352 [3d Dept. 2023] [internal quotation marks, brackets and citations omitted], appeal dismissed 40 N.Y.3d 949, 195 N.Y.S.3d 663, 217 N.E.3d 683 [2023] ; see Matter of Bodenmiller v. DiNapoli, 215 A.D.3d 96, 98, 188 N.Y.S.3d 228 [3d Dept. 2023] ).

Petitioner testified that, on the day of the incident, he and another officer responded to an emergency in which a reportedly suicidal woman had locked herself in her bedroom. After the woman refused to unlock the door or exit the bedroom, petitioner attempted to "kick in the interior door" and sustained injuries when he "felt a pop" in his leg and knee. Petitioner explained that he had previously executed similar maneuvers and acknowledged that...