Opinion
11-16-2017
In the Matter of Charles ZEKUS, Petitioner, v. Colleen GARDNER, as Executive Deputy Comptroller, Respondent.
Baker Leshko Saline & Drapeau, LLP, White Plains (Anthony C. Saline of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Baker Leshko Saline & Drapeau, LLP, White Plains (Anthony C. Saline of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: GARRY, J.P., DEVINE, MULVEY, AARONS and RUMSEY, JJ.
MULVEY, 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 the Comptroller denying petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits, alleging that he was permanently incapacitated from performing his job duties as the result of an incident where he fell while working. 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. The Comptroller adopted the Hearing Officer's decision and this CPLR article 78 proceeding ensued.
We confirm. "As the applicant, petitioner bore the burden of establishing his entitlement to accidental disability retirement benefits, and [the Comptroller's] determination in this regard—if supported by substantial evidence—will not be disturbed" (Matter of Holden v. DiNapoli, 122 A.D.3d 1105, 1106, 996 N.Y.S.2d 783 [2014] [citations omitted]; see Matter of Washington v. DiNapoli, 145 A.D.3d 1375, 1376, 45 N.Y.S.3d 615 [2016] ). 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. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] [internal quotation marks and citation omitted] ). Importantly, "injuries incurred due to conditions that are readily observable and could be reasonably anticipated, or attributable to an employee's own misstep or inattention, do not constitute accidents" (Matter of Lamb v. DiNapoli, 139 A.D.3d 1312, 1313, 33 N.Y.S.3d 482 [2016] ; see Matter of Manning v. DiNapoli, 150 A.D.3d 1382, 1382, 54 N.Y.S.3d 216 [2017] ).
Petitioner testified that, on the day of the incident, he had responded to a medical aid call in an apartment building. According to petitioner's testimony, after checking on the condition of the subject of the call, he was leaving the subject's apartment when the doormat outside the apartment door slid out from underneath him, causing him to fall. However, the employer's incident report, completed on the same day as petitioner's fall, makes no mention of the doormat sliding out from underneath petitioner. Rather, the report indicates that petitioner reported that he slipped on the doormat. Petitioner also testified that he had wiped his feet on the doormat when he arrived and that the doormat did not move at that time and appeared to be secure. The assessment of petitioner's testimony and the inconsistency between the testimony and the incident report created a credibility determination for the Comptroller to resolve (see Matter of Bevilacqua v. DiNapoli, 143 A.D.3d 1219, 1220, 40 N.Y.S.3d 626 [2016] ; Matter of Messina v. New York State & Local Employees' Retirement Sys., 102 A.D.3d 1068, 1069, 959 N.Y.S.2d 289 [2013], lv. denied 21 N.Y.3d 855, 2013 WL 1876514 [2013] ). Inasmuch as it can be inferred from the foregoing that petitioner's fall was the result of his own misstep or inattention, the Comptroller's determination is supported by substantial evidence and it will not be disturbed (see Matter of Walsh v. New York State & Local Retirement Sys., 82 A.D.3d 1341, 1342, 918 N.Y.S.2d 255 [2011] ; Matter of Napoli v. DiNapoli, 68 A.D.3d 1616, 1617, 891 N.Y.S.2d 702 [2009] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
GARRY, J.P., DEVINE, AARONS and RUMSEY, JJ., concur.