In the Matter of Pat Sica, Respondent,v.Thomas P. DiNapoli,, Appellant.BriefN.Y.January 2, 2018To be argued by William Storrs Time requested: 15 minutes APL-2016-00164 Appellate Div. Third Dept. No. 522020 H>tate of dBteto §9orfe Court of appeals: IN THE MATTES OF PAT SICA, Petitioner-Respondent, -against- THOMAS P. DINAPOLI, AS STATE COMPTROLLER, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent-Appellant The Capitol Albany, New York 12224 Telephone: (518) 776-2037 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General of Counsel Dated: August 4, 2017 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES im PRELIMINARY STATEMENT 1 QUESTION PRESENTED 22 STATUTORY BACKGROUND 3 STATEMENT OF THE CASE 6 A. The Initial Determination and the Hearing B. The Comptroller’s Final Determination 6 9 C. The Decision Below 10 ARGUMENT BECAUSE PETITIONER’S EXPOSURE TO TOXIC FUMES WAS A FORESEEABLE RISK INHERENT IN HIS DUTIES AS A FIREFIGHTER, HIS RESULTING INJURIES WERE NOT THE RESULT OF AN “ACCIDENT” 13 CONCLUSION 22 i TABLE OF AUTHORITIES CASES PAGE Cohen, Matter of v. DiNapoli, 78 A.D.3d 1463 (3d Dep’t 2010) 18 Coon, Matter of v. N.Y.S. Comptroller, 30 A.D.3d 884 (3d Dep’t), Iv. denied, 7 N.Y.3d 717 (2006) ... 18 DeBenedetto, Matter of v. Regan, 196 A.D.2d 946 (3d Dep’t 1993) 19 Keller, Matter of v. Regan, 212 A.D.2d 856 (3d Dep’t 1995) 14 Kelly, Matter of v. DiNapoli, (APL-2016-00083) 1, 3n Kowal, Matter of v. DiNapoli, (APL-2017-00136) 1 Lassen, Matter of v. Hevesi, 7 A.D.3d 780 (3d Dep’t 2004) 18 Lichtenstein, Matter of v. Board of Trustees, 57 N.Y.2d 1010 (1982) 4, 14 McCambridge, Matter of v. McGuire, 62 N.Y.2d 563 (1984) 14 Melendez, Matter of v. N.Y.S. Comptroller, 54 A.D.3d 1128 (3d Dep’t 2008) 17-18 Menna, Matter of v. New York City Employees’ Retirement System, 59 N.Y.2d 696 (1983) 15 ii TABLE OF AUTHORITIES (CONT’D) CASES (cont’d) Rakowski, Matter of v. N.Y. State & Local Ret. Sys., 215 A.D.2d 802 (3d Dep’t 1995) PAGE 19 Schultz, Matter of v. DiNapoli, 137 A.D.3d 1454 (3d Dep’t 2016) 17 Schussler, Matter of v. Codd, 59 N.Y 2d 698 (1983).... 15 Sica, Matter of v. DiNapoli, 141 A.D.3d 799 (3d Dep’t 2016) 10 Starnella, Matter of v. Bratton, 92 N.Y.2d 836 (1998) 14 Valentin, Matter of v. Board of Trustees, 59 N.Y.2d 702 (1983) 15 Witts, Matter of v. DiNapoli, 137 A.D.3d 1456 (3d Dep’t 2016) 17 STATE STATUTES C.P.L.R. § 5601(a) 12 Retirement & Social Security Law § 362(a) § 362(b)(1) . § 362(b)(2) § 363 § 363(a) § 363(a)(1) . § 363-c(a) 3 4n 4 ..2, 21 4, 6,7 14 5n iii TABLE OF AUTHORITIES (CONT’D) PAGE Retirement & Social Security Law (cont’d) § 363-c(b)(l) . § 363-c(f) § 363-c(i) § 363(e)(3) § 364(a) . § 370 § 444(a) 5 6 6 4 5 4 4n, 5n State Administrative Procedure Act § 306(1) 14 MISCELLANEOUS 1984 N.Y. Laws ch. 661, Bill Jacket at 11, 21 1998 N.Y. LAWS CH. 489, BILL JACKET AT 3 5, 6 5n iv PRELIMINARY STATEMENT This appeal is one of three currently before the Court examining the propriety of a determination by respondent Comptroller DiNapoli denying accidental disability retirement benefits on the ground that the petitioner’s injuries resulted from a risk inherent in the petitioner’s regular employment duties, as opposed to an unforeseeable precipitating event. The other two are Matter of Kelly v. DiNapoli (APL-2016-00083), which is now fully briefed, and Matter of Kowal v. DiNapoli (APL-2017- 00136), which the Court has selected for expedited merits consideration under Rule 500.11. In all three cases, the effect of the determination is to relegate the petitioners to performance of duty disability benefits, which are not always as favorable. In this case, petitioner Pat Sica responded to an emergency call from a supermarket for a breathing difficulty. At the scene, he found two workers who had been rendered unconscious, one inside and the other just outside a walk-in freezer. Neither exhibited any signs of external trauma. Although the fact that, not one, but two workers had been rendered unconscious inside or near a confined space should have signaled a problem with the air quality, petitioner administered aid with no protective gear until the ambulance arrived. He soon began to feel nauseous and light headed, and he later learned that he had been exposed to toxic fumes. Respondent Comptroller DiNapoli thereafter denied petitioner’s application for accidental disability retirement benefits on the basis that petitioner’s injuries were not the result of an “accident” within the meaning of the Retirement & Social Security Law, but rather a foreseeable risk inherent in his work as a firefighter. That determination was based on substantial evidence in the record and should have been sustained. By a divided vote, the Appellate Division, Third Department, found otherwise and annulled respondent’s determination. This Court should reverse. QUESTION PRESENTED Under New York Retirement & Social Security Law § 363, a member is eligible to receive accidental disability retirement benefits if permanently incapacitated from performing his or her job duties as the result of an “accident” sustained in service. The question presented is whether substantial evidence supports respondent’s determination that petitioner’s injuries were not accidental, within the meaning of this statute, because they resulted from a foreseeable risk inherent in his 2 work as a firefighter, as opposed to an unforeseeable precipitating event that was not an inherent risk of the job. STATUTORY BACKGROUND1 There are three kinds of permanent disability retirement benefits potentially available to firefighters such as petitioner: (1) ordinary disability retirement benefits, (2) accidental disability retirement benefits, and (3) performance of duty disability retirement benefits. Ordinary disability retirement benefits are the easiest disability retirement benefits to obtain. They are payable to members of the New York State Police and Fire Retirement System (the “Retirement System”) with at least ten years of service who become permanently incapacitated. See Retirement & Social Security Law (“R.S.S.L.”) § 362(a). A member need not have been disabled in the performance of duty, and the cause of the disability is not a factor in determining eligibility. The amount of ordinary disability retirement benefits payable to a member depends on the member’s salary and length of service. Nonetheless, such benefits are 1 The description that follows is identical to that presented in our brief to the Court in Kelly v. DiNapoli (APL-2016-00083). 3 generally no less than a third of the member’s final average salary, and they can be as favorable as a service retirement benefit. See R.S.S.L. § 362(b)(2); see also R.S.S.L. § 370 (addressing service retirement benefits for members who retire after reaching the minimum retirement age).2 The most difficult kind of disability retirement benefits to obtain— and sometimes the most financially favorable— are accidental disability retirement benefits. Accidental disability retirement benefits are available only to members injured as the result of an “accident” sustained in the performance of duty, within the meaning of R.S.S.L. § 363(a). As this Court has explained, to obtain accidental benefits, a Retirement System member must establish that an injury resulted from a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 (1982). Members who can satisfy this stringent requirement receive on an annual basis 75% of their final average salary, see R.S.S.L § 363(e)(3), 2 When a Tier 2 member such as petitioner reaches the age of 60, the maximum ordinary disability retirement benefit is capped at the amount of the service retirement benefit, which would be a maximum of 64% of final average salary. R.S.S.L. §§ 362(b)(1), 444(a). 4 although the benefit is reduced by any benefit payable by reason of such disability or death under the Workers’ Compensation Law, see R.S.S.L. § 364(a). In 1984, the Legislature established performance of duty disability retirement benefits for members who are disabled in the performance of their duties, but not as a result of an accident.3 See R.S.S.L. § 363-c(b)(l). The Legislature created performance of duty disability retirement benefits precisely because of the “very stringent precedent” that made accidental disability retirement benefits so difficult to obtain. See 1984 N.Y. Laws ch. 661, Bill Jacket at 11 (March 1, 1984 Memorandum of New York State Employees Retirement System). Indeed, the exclusion of “exertional injuries” from the ambit of accidental disability retirement benefits was observed to have “often worked an injustice,” which the 3 With the enactment of performance of duty disability retirement benefits, the Legislature initially eliminated accidental disability retirement benefits for members hired after January 1, 1985. 1984 N.Y. Laws ch. 661 (amending R.S.S.L. § 363-c[a]). But the Legislature restored those benefits in. 1998, stating that the restoration was intended to address the “inequity” caused by the absence of such benefits for more recently hired members. See 1998 N.Y. Laws ch. 489 (amending R.S.S.L. § 444[a]); Bill Jacket at 3 (June 24, 1998 Letter of Senator Trunzo). 5 creation of performance of duty disability retirement benefits was intended to address. See 1984 N.Y. Laws ch. 661, Bill Jacket at 21 (July 16, 1984 Memorandum of New York State Department of State). Performance of duty disability retirement benefits generally constitute 50% of final average salary. See R.S.S.L. § 363-c(f). Unlike accidental disability retirement benefits, however, they are not reduced by any benefit payable under the Workers’ Compensation Law. See R.S.S.L. § 363-c(i). STATEMENT OF THE CASE A. The Initial Determination and the Hearing Petitioner Pat Sica was a firefighter with the City of Yonkers Fire Department (68-69). In 2012, he applied for accidental disability retirement benefits and performance of duty disability retirement benefits on the basis of injuries allegedly incurred in the performance of duties in four separate incidents. He subsequently conceded that three of those incidents were not “accidents” within the meaning of R.S.S.L. § 363(a), but he continued to maintain that one was, namely, the exposure to toxic fumes that he suffered back on September 2, 2001, when he responded to a medical emergency at a supermarket where two workers 6 who were chemically cleaning a walk-in freezer were overcome by toxic fumes (12, 14, 55, 96). Respondent’s Director of Disability Services granted Sica’s application for performance of duty disability retirement benefits (21, 58), and Sica is now receiving those benefits. But Sica’s application for accidental disability retirement benefits was denied on the ground that the September 2, 2001 incident did not constitute an “accident,” as required for such benefits (20). Sica timely requested a hearing to challenge the denial (22). At the ensuing hearing, the only issue presented was whether the September 2001 incident constituted an “accident” within the meaning of R.S.S.L. § 363(a). Sica testified that on the day in question, his station received a medical emergency call with a code “10-45, difficulty breathing” (70, 71). Sica, his lieutenant, and two other firefighters responded to the scene, a supermarket (73-74). Sica and his co-worker Coogan entered the building and found two unconscious workers at the rear of the store, one inside a walk-in freezer, and one outside the ten-foot by six-foot freezer (72, 84). The one inside the freezer appeared to be in worse condition (72). Neither exhibited signs of external trauma. Although the fact that two workers 7 had been rendered unconscious inside or near a confined space should have signaled a problem with the air quality in the vicinity of the freezer, petitioner administered aid with no protective gear to the worker inside the freezer who appeared to be in worse condition until the ambulance arrived (74-75, 78). After both workers were placed in ambulances, Sica began to feel nauseous and light-headed (80). He was transported to a hospital emergency room (81). Sica later learned that he had been exposed to carbon monoxide (85). Both an incident report and Sica’s application for retirement benefits state that the workers at the supermarket were using chemicals to clean the walk-in freezer when they were overcome by toxic fumes (96, 107). Sica also testified about his job duties more generally. He explained that his duties included responding to emergency medical calls and that he had previously been on such calls (83). He also had received training in handling hazardous chemicals, exposure to chemicals and the effects of chemicals on firefighters (84, 86). He had previously responded to calls involving chemical spills or leaks (84). His official written job description states that the work of a firefighter is “hazardous” and requires the ability to work under adverse environmental conditions, including, 8 among other things, “exposure to fire, smoke, fumes, explosives, toxic materials, chemicals and corrosives” (103, 104). It also states that an “ESSENTIAL FUNCTION” of a firefighter is to “administer!] emergency first aid treatment to injured persons” (103) (emphasis in original). In his post-hearing memorandum, Sica argued that he was entitled to accidental disability retirement benefits because his exposure to chemical fumes was an unexpected and unforeseeable risk (25). B. The Comptroller’s Final Determination Although the hearing officer agreed with Sica (22-28), the Comptroller disagreed and denied Sica’s application for accidental disability retirement benefits (29-33). The Comptroller found that Sica’s job required him to respond to emergency medical calls (30). In making this finding, the Comptroller relied on Sica’s testimony that he had received training in hazardous materials and chemical exposure and had responded to calls of that nature in the past (31). The Comptroller additionally relied on the official description of Sica’s job duties, which states that a firefighter’s duties are “hazardous” and include exposure to “toxic materials, chemicals and corrosives” (31). As a result, when Sica responded to the emergency call on September 2, 2001, he was doing his 9 job, and the injury he suffered as a result of his exposure to fumes was inherent in his regular employment duties; the injury was thus not “accidental,” as required for accidental disability retirement benefits (31- 33). C. The Decision Below Sica commenced the underlying article 78 proceeding to challenge the Comptroller’s determination. Because his petition raised a substantial evidence issue, Supreme Court transferred it for initial disposition to the Appellate Division, Third Department, which annulled the determination over a two-judge dissent. See Matter of Sica v. DiNapoli, 141 A.D.3d 799 (3d Dep’t 2016) {reproduced, at 198-206). The Third Department recognized its three prior decisions holding that exposure to toxic fumes while fighting fires is an inherent risk of a firefighter’s regular duties. The court reasoned that Sica’s case was different because Sica was not responding to a fire, but rather an emergency medical call, and thus had no information that would have led him to “anticipate, expect or foresee the precise hazard” (200). The court also faulted the Comptroller for placing too much emphasis on Sica’s written job description, which explicitly provided that Sica was required 10 to respond to medical emergencies and risk exposure to toxic fumes. The court reasoned that broadly written job descriptions would always render emergency personnel ineligible for accidental disability benefits, regardless of how unforeseeable the circumstances of their injury might be (201). Accordingly, the court remitted the matter to the agency “for further proceedings not inconsistent with” the court’s decision (206). The dissenters, in contrast, reasoned that Sica’s own testimony together with his written job description provided substantial evidence to support the Comptroller’s determination that Sica’s exposure to toxic fumes arose from foreseeable risks inherent in his regular employment duties (202). That evidence established that Sica’s regular duties included not only fighting fires, but also providing emergency medical assistance. Sica’s written job description specifically provided that the job was hazardous and entailed exposure to, among other things, toxic chemicals; indeed, Sica was specifically trained in these areas and had experience responding to these types of incidents (203). And as to the September 2, 2001 incident in particular, the dissenters explained that a reasonable firefighter with Sica’s training should have anticipated that there was a problem with the air quality (204). After all, Sica responded 11 to an emergency call coded for “difficulty breathing” in a supermarket where he found not one, but two, unconscious workers in close proximity to each other, in or near a confined space— a commercial freezer— with no signs of external trauma. Given that two workers had been affected, it was highly unlikely that the cause was an internal medical condition, such as a heart attack. Rather, allocating the burden of proof to Sica, the record provided no plausible explanation for the workers’ condition other than a problem with the air quality (204, n.3). The dissenters further observed that a reasonable conclusion to draw from the record was that the threat that compelled Sica’s response as a firefighter— the dangerous condition in the supermarket— was the same threat that caused his injuries. Given this substantial evidence that Sica’s injury resulted from a foreseeable risk inherent in his job as a firefighter whose duty it was to assist injured persons, the dissenters would not have disturbed the Comptroller’s determination. (204-205.) In light of the two-justice dissent on a question of law, respondent initially filed a timely appeal as of right to this Court. C.P.L.R. § 5601(a). After this Court dismissed the initial appeal on the ground that the Third 12 Department’s decision was not final, it granted respondent’s motion for leave to appeal (196-197). ARGUMENT BECAUSE PETITIONER’S EXPOSURE TO TOXIC FUMES WAS A FORESEEABLE RISK INHERENT IN HIS DUTIES AS A FIREFIGHTER, HIS RESULTING INJURIES WERE NOT THE RESULT OF AN “ACCIDENT” Sica’s injuries resulted from a foreseeable risk inherent in his job as a firefighter to provide emergency medical care, a risk that expressly included the risk of exposure to toxic fumes. Accordingly, his injuries were not incurred in an “accident,” within the meaning of the R.S.S.L. Rather, as the Third Department’s dissenters noted, ample evidence in the record established that (1) Sica’s job required him to respond to emergency calls to assist injured persons and included an expectation that he work in hazardous environments, including those presenting a risk of exposure to toxic fumes; (2) Sica had received training in how to provide emergency medical care and to avoid exposure to toxic fumes, and (3) Sica regularly responded to medical emergencies and had responded to emergencies involving exposure to toxic fumes in the past. Moreover, when Sica responded to the emergency call in this case, all 13 signs pointed to a problem with the air quality; yet he proceeded to provide assistance without any protective gear. Sica’s injuries were therefore a foreseeable consequence of his efforts to perform the duties of his job. Because the Comptroller’s determination is consistent with long¬ standing precedent and the record evidence, the Third Department erred by declining to sustain it, and this Court should reverse. At the administrative hearing in this matter, petitioner had the burden of proving that he was incapacitated as the natural and proximate result of an “accident,” within the meaning of R.S.S.L. § 363(a)(l/). See Matter of Keller v. Regan, 212 A.D.2d 856, 857 (3d Dep’t 1995). See generally State Administrative Procedure Act § 306(1) (imposing burden of proof on party initiating proceeding to challenge action). This Court has explained that an “accident” for purposes of the R.S.S.L. and analogous retirement benefit statutes, such as the New York City Administrative Code, is a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 (1982); see also Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) (reiterating this rule). Further, the Court has expressly stated that there 14 must be “a precipitating accidental event” that was “not a risk of the work performed.” Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839 (1998) (quoting Matter of McCambridge, 62 N.Y.2d at 568). In contrast, injuries that result from a foreseeable risk of assigned job duties, and not an intervening unexpected event, are not accidental. See, e.g., Matter of Menna v. New York City Employees’ Retirement System, 59 N Y.2d 696 (1983) (back strain sustained while putting a tire in trunk of city vehicle); Matter of Valentin v. Board of Trustees, 59 N.Y.2d 702 (1983) (same while lifting trash can); Matter of Schussler v. Codd, 59 N.Y.2d 698 (1983) (hearing loss sustained in course of practice sessions at pistol range). Applying these principles here, substantial evidence supports the Comptroller’s determination that Sica failed to sustain his burden of proving that his injuries were accidental. Sica’s written job duties stated that an essential function of petitioner’s job was providing first aid treatment to injured persons. That same job description stated that Sica expected to work in conditions that might expose him to toxicwas materials and chemicals. Accordingly, Sica received training in how to 15 provide emergency medical care and to avoid the hazard posed by chemical exposure. Moreover, the risk of injury from exposure to toxic fumes was foreseeable under the circumstances, even assuming the fumes were odorless and invisible. From the code of the call Sica received, he knew or should have known that he was responding to a call for a person having difficulty breathing. When he arrived at the supermarket, he found two workers, both unconscious in or near a confined space— the commercial freezer. Neither exhibited any evidence of external trauma. The chance that both had been rendered unconscious by an internal condition, such as a heart attack, was unlikely. The Comptroller thus rationally concluded that Sica was on notice that something was wrong with the air quality in the area of the freezer. And Sica, who had the burden of proof, failed to provide any other plausible explanation for why two workers with no obvious external etiology working in or near the confines of a commercial freezer would lose consciousness simultaneously. As the dissenters properly reasoned (203-205), the fact that Sica could or should have reasonably anticipated a problem with the air quality in that area, 16 yet failed to use protective gear before administering aid, required the Third Department to confirm the Comptroller’s determination. The Third Department’s decision in this case is in tension with prior decisions of that court holding that the risk of exposure to toxic fumes, in light of job duties, training and experience, is inherent to a firefighter’s duties. For example, in Matter of Schultz v. DiNapoli, 137 A.D.3d 1454 (3d Dep’t 2016), the Third Department held that a firefighter’s injury from exposure to toxic fumes while fighting a fire at a warehouse where toxic chemicals were stored was not accidental, even though the warehouse owner did not have a license to store the toxic chemicals, the owner’s sprinkler system was not operating properly, and proper protocols for fighting fires involving hazardous materials fires were not followed. To be sure, the firefighter in Schultz was exposed to toxic fumes in the course of fighting a fire. But it is arbitrary to treat a firefighter’s injuries from exposure to toxic fumes as accidental only when incurred in the course of responding to a medical emergency, and not in a fire, especially when, as here, the risk of exposure to toxic fumes was evident from the circumstances. 17 More generally, the Third Department has long held that exposure to various dangerous conditions is an inherent risk in the professional duties of emergency response personnel, in light of job duties, training and experience. See, e.g., Matter of Witts v. DiNapoli, 137 A.D.3d 1456, 1457-58 (3d Dep’t 2016) (tripping over unseen furniture and toys while fighting a fire was an inherent risk in firefighter’s duties); Matter of Melendez v. N.Y.S. Comptroller, 54 A.D.3d 1128, 1129 (3d Dep’t 2008) (falling from a fence and tripping over snow banks are inherent risks of police officer’s employment “and not the result of unexpected events, even without seeing the actual hazard that caused him to fall”); Matter of Coon v. N.Y.S. Comptroller, 30 A.D.3d 884, 885 (3d Dep’t) (stepping into a pothole while directing traffic is a risk of the work performed by police officers, even if petitioner was unaware of the hazard that caused his fall), Iv. denied, 7 N.Y.3d 717 (2006); Matter of Lassen v. Hevesi, 9 A.D.3d 780 (3d Dep’t 2004) (tripping over lawnmower while backing out of house fire was an inherent risk in firefighter’s duties, “despite his lack of awareness of the lawnmower”). Even where the applicant is not an emergency responder, the Third Department has found that exposure to odorless, invisible toxic fumes 18 does not constitute an accident if the risk was an inherent part of the applicant’s job duties. For example, the court has determined that the exposure of a district attorney’s investigator to substances during a search of a home did not constitute an accident because such exposures occurred routinely during the course of similar operations. See Matter of Cohen v. DiNapoli, 78 A.D.3d 1463 (3d Dep’t 2010). Nor was it an accident when the chief clerk of a city court was exposed to “unknown fumes and chemicals” used by maintenance staff at her workplace. Matter of Rakowski v. N.Y. State & Local Ret. Sys., 215 A.D.2d 802 (3d Dep’t 1995). And in Matter of DeBenedetio v. Regan, 196 A.D.2d 946 (3d Dep’t 1993), a police officer’s injuries were not accidental where they were incurred in the performance of his duties to respond to calls for assistance at the airport. In that case, the officer answered a report of smoke coming out of a suitcase. When he arrived at the scene, the officer removed some clothing in the suitcase and found broken test-tube vials leaking liquid. The officer conceded that he had previously been involved in other chemical spills as part of his duties. The Third Department confirmed the Comptroller’s determination that the officer was 19 performing his normal and expected duties and that his injuries resulted from risks inherent in the performance of those duties. The majority in Sica was also wrong to reason that broadly written job descriptions would always render emergency personnel ineligible for accidental disability benefits, regardless of how unforeseeable the circumstances of their injury might be (201). In cases where the Comptroller has determined that an incident qualifies as an “accident” for retirement benefit purposes, the applicant would not seek judicial review. Thus, there are no reported court decisions regarding those determinations. But we are advised that, in unreviewed determinations, the Comptroller has granted accidental disability benefits to emergency responders who are injured in circumstances that did not involve risks inherent in their duties. Examples include a police officer attempting to extricate a passenger from a car who was injured when his partner accidentally caught the applicant’s hand in a Hurst tool (“jaws of life”); a police officer who was injured when a Hurst tool malfunctioned; a police officer who was trapped between a stranded motorist’s car and another car that failed to negotiate a turn; a police officer who was injured when the tire on a passing vehicle suddenly blew out; a firefighter responding 20 to a motor vehicle accident who was injured when he had to jump out of the way to avoid being hit by an uninvolved, out-of-control car; a firefighter who was injured when a slippery foreign substance on the pole in the firehouse caused him to slide down too fast and injure his knee; a police officer using his K-9 to track a suspect who was injured when the dog suddenly darted after a deer; and a police officer in a patrol car who was injured when the radar detached from the dashboard and hit his arm. These cases demonstrate that police officers and firefighters can receive accidental disability benefits, even for incidents that occur in the course of responding to emergencies.4 Each incident must be judged on its own facts. And given the consistent, long-standing judicial interpretations of R.S.SL. § 363 and the analogous statutory provisions— interpretations of which it is presumed that the Legislature is aware— any revision to the standards upon which accidental disability retirement benefits are granted would appropriately come from the Legislature. Based on all of the above, the Comptroller’s determination that Sica suffered injuries that were the result of risks inherent in his regular 4 Copies of these determinations can be provided to the Court upon request. 21 professional duties is rational and supported by substantial evidence, and the Third Department majority improperly substituted its own judgment for that of the Comptroller. Accordingly, the Court should reverse the decision below and dismiss the petition. 22 CONCLUSION For all these reasons, the memorandum and judgment of the Appellate Division, Third Department, should be reversed. Dated: Albany, NY August 4, 2017 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney Generod of the Statepf New York At/oipey for Respondent By, VA LIAME. stant sydAssi icitor General BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General of Counsel The Capitol Albany, NY 12224 (518) 776-2037 Reproduced on Recycled Paper 23