In the Matter of Robert W. Kowal, Appellant,v.Thomas P. DiNapoli, et al., Respondents.BriefN.Y.February 7, 2018EDELSTEIN & GROSSMAN Attorneys at Law 501 Fifth Avenue, Suite 514 New York, NY 10007 Tel: (212) 871-0571 Fax: (212) 922-2906 jonathan.edelstein.2@gmail.com August 1, 2017 VIA FEDERAL EXPRESS New York Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Matter of Kowal v. DiNanoli, APL-2017-00136 Your Honors: I respectfully submit the following appellate arguments on behalf of petitioner-appellant Robert Kowal, pursuant to 22 NYCRR § 500.11 and this Court’s scheduling order of July 10, 2017. For the reasons set forth below, Mr. Kowal submits that the undisputed facts require reversal of the split decision of the Appellate Division, Third Department. Mr. Kowal contends that the Appellate Division majority improperly nan-owed this Court’s formulation of “accident” for purposes of the Retirement and Social Security Law by (a) ignoring this Court’s admonition that only “ordinary” and “routine” risks of employment, rather than any and all such risks, render an injury non-accidental, and (b) improperly conflating an unexpected event with an unforeseeable event. Further, appellant contends that there was no substantial evidence that his injury resulted from anything other than an assault - which respondent concedes to be accidental - and that characterizing the underlying incident as anything other than an assault would also be contrary to respondent’s own administrative precedent. Relevant Facts and Procedural History The facts underlying this appeal are undisputed. petitioner-appellant Robert W. Kowal was a New York State Court Officer Sergeant with 15 years’ service and was assigned to work at the Middletown City Court. (R.50). approximately 9 a.m., Mr. Kowal was in the courthouse lobby assisting at the X-ray machine when On February 8, 2012, At Citations to “R.” refer to the Record on Review in the Appellate Division, copies of which are submitted herewith pursuant to 22 NYCRR § 500.11. 1 he heard fellow officer Mathisen yell “gun!” (R.51). Mr. Kowal observed an assailant, later identified as Timothy Mulqueen, outside the courthouse door holding a 12-gauge shotgun. (R.50-51, 70). Mulqueen crouched down and fired two shots through the closed glass door with the shotgun. (R.50-52). Mr. Kowal drew his service weapon and returned fire at Mulqueen from a distance of 15 feet, striking him. (R.52-53). Mr. Kowal’s shot took Mulqueen down, and Mulqueen later died of his wounds. (R.53). During the incident, there were approximately 40 bystanders in the lobby, including attorneys, other civilians and prisoners, none of whom were injured due to petitioner’s heroic actions. (R.54). However, another court officer, Truex, was hit in the arm and as a result has a pellet lodged there even to the present day. (R.79). Moreover, the pellets from the shotgun came within inches of Mr. Kowal, evidenced by the marks from buckshot by the door he was standing in front of when he shot Mulqueen. (R.68). Mulqueen was later found to have an additional 40 additional shotgun cartridges in his possession. (R.55). This was, according to Mr. Kowal, a type of attack for which he had not received training and which was a “new and unexpected incident” for him. (R.77-78). Richard Krulish, President of the New York Supreme Court Officers’ Association, attested that “[t]his incident is the only time court officers were fired upon inside a courthouse and returned fire killing their attacker.” (R.131) (emphasis added). Mr. Kowal also received numerous commendations as a result of his actions defending the courthouse. (R.133-37). As a result of the incident, Mr. Kowal suffered post-traumatic stress disorder that left him unable to work as a court officer. (R.72-73). He applied for Accidental Disability Retirement Benefits (R.120-29), which respondent denied on the ground that the incident that caused his injury did not constitute an accident as that term is used in Section 605-a of the Retirement and Social Security Law. (R.208). Mr. Kowal timely requested a hearing and redetermination, which was held before the Hon. Pano Z. Patsalos on September 8, 2014. (R.25-118). As shown by the post-hearing memoranda of law submitted by the parties, there was no dispute over the facts, and the dispute was instead over the legal issue of whether such facts constituted an “accident” under the R&SSL. (R.150-68). Petitioner’s counsel argued that the attack was not part of Mr. Kowal’s ordinary duties (R.157) and that it was the result of an assault (R.157-58, 162), whereas respondents argued that counteracting a shooting was an inherent risk of his employment as evidenced by “[his] training and the requirement that he carry a firearm” (R.167-68). On January 12, 2015, JHO Patsalos issued a memorandum decision finding that petitioner had not suffered a compensable accident, and has instead “responded to the situation by executing his ordinary employment duties as instructed and trained in security, emergencies, use of his firearm and use of deadly force in response to deadly force.” (R.174) (emphasis added). On March 4, 2015, respondent adopted JHO Patsalos’ findings of fact and conclusions of law. (R.177). This represented a final agency decision and fully exhausted Mr. Kowal’s administrative remedies. (R.11). 2 Mr. Kowal timely sought Article 78 relief by filing a petition in the Albany County Supreme Court. (R.4-23). Respondent interposed an answer (R.203-07) and, because the petition raised a substantial evidence issue, it was transferred to the Appellate Division, Third Department, by operation of CPLR § 7804(g). (R.1-3). Both parties filed briefs in the Appellate Division. In pertinent part, Mr. Kowal argued that the incident which gave rise to his injury was not a regular, routine and/or ordinary risk of employment and was therefore an unexpected event. Mr. Kowal contended further that his injury resulted from an assault, which constituted an accident under respondent’s own policy, and that characterizing it as anything other than an assault would be contrary to respondent’s administrative precedent. On December 1, 2016, the Third Department confirmed the respondents’ administrative determination by a vote of 4-1. See Kowal v. DiNapoli. 145 A.D.3d 1152 (3d Dept. 2016). The majority found that, because guarding against courthouse shooters was part of Mr. Kowal's duties and because his training included the handling of such situations, the incident was a “reasonably foreseeable and.. . inherent” risk of employment rather than an accident. See id.at 1153-54. The majority also found that, because others in the lobby were endangered by the gunfire and the fire was not proven to be aimed specifically at him, he was "[no] more of a target... than the other people in the immediate vicinity" and was not assaulted. See id. at 1154-55. Judge Lynch, in dissent, argued that, while the shooting incident did fall within petitioner’s job duties, that “does not conclude the analysis, for we must account for the precipitating cause of injury.” Id at 1156 (Lynch, J., dissenting). The dissenting judge explained that the circumstances of the incident rendered it far from ordinary or routine and that it in fact constituted an assault: Without question, the precipitating event here was extraordinary. Petitioner commendably acted within his job description, training and instinct, but there is nothing routine about this event (see Matter of Cantone v, McCall. 289 A.D.2d 863, 864, 734 N.Y.S.2d 362 [2001]). Petitioner testified that, after hearing a fellow officer yell “gun,” he observed the assailant crouch down at the glass-entry door and fire the shotgun, blasting a hole through the door. As to the shooting sequence, petitioner testified that “[h]e fired. I fired. He fired. I fired.” Petitioner explained that the shotgun pellets came “within inches” of striking him and actually struck a fellow court officer. In my view, the distinctive, controlling factor here is that the assailant initiated the unprovoked attack, firing shots directly at petitioner and others in the lobby area. This precipitating act constitutes an assault against petitioner and, thus, qualifies as an accident within the embrace of Retirement and Social Security Law § 605-a. The three cases relied upon by the Hearing Officer to conclude that the shooting of an individual by a police officer in the line of duty is not an accident— Matter of Berbenich v. Regan. 81 3 A.D.2d 732, 439 N.Y.S.2d 479 (1981), Matter of Taylor v. Regan. 103 A.D.2d 884, 477 N.Y.S.2d 908 (1984) and Matter of Becklev v. Nitido. 123 A.D.3d 1330, 998 N.Y.S.2d 535 (2014)— are all distinguishable by the determinative fact that petitioner, himself, was one of the targets of the assailant's gunfire and immediately in harm's way. In my view, the Comptroller's determination that the February 2012 incident did not constitute an accident within the meaning of Retirement and Social Security Law § 605-a is not supported by substantial evidence in this record. As such, I would annul the determination and remit the matter to the Comptroller for further proceedings on the application. Id. (emphasis added). Mr. Kowal timely moved in the Appellate Division for leave to appeal to this Court, which was denied by the same 4-1 margin. He then filed a timely leave motion in this Court, which was granted by order dated June 29, 2017. By further order dated July 10, 2017, this Court directed that the parties file letter briefs pursuant to 22 NYCRR § 500.11. Now, for the reasons set forth below, this Court should reverse the decision of the Appellate Division, find that Mr. Kowal’s injuries resulted from a compensable accident, and grant such other and further relief to petitioner as it may deem just and proper. Argument The Appellate Division Impermissibly Narrowed This Court’s Formulation of “Accident” under the R&SSL. A. Section 605-a of the Retirement and Social Security Law provides in pertinent part that a uniformed court officer or peace officer “shall be entitled to an accidental disability retirement allowance” if, at the time his or her benefit application is filed, he or she is “[pjhysically or mentally incapacitated for performance of duty as the natural and proximate result of an accident, not caused by his own willful negligence, sustained in such service and while actually a member of the retirement system.” Here, there is no dispute that Mr. Kowal was a uniformed court officer who was actually in service and a member of the Retirement System at the time he was injured, nor is there any contention that Mr. Kowal was willfully negligent in sustaining injury. The only contested issue is whether Mr. Kowal’s injury resulted from an “accident” as that term is understood in the statute. This Court has considered the meaning of the term “accident” several times with remarkable consistency. The first decision in which this Court considered the issue was Lichtenstein v. Board of Trustees. 57 N.Y.2d 1010 (1982), in which the petitioner had strained his back while leaning over a motor vehicle to affix a parking summons. This Court, in finding that 4 such an injury did not constitute an accident, stated in pertinent part: Although the term “accident” is not specifically defined by the statute, we adopt the commonsense definition of a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” According to this definition, 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 Id. at 1012 (citations omitted) (emphasis added).2 This Court repeated the Lichtenstein formulation in McCambridge v. McGuire. 62 N.Y.2d 563 (1984). The McCambridge decision involved two petitions filed by New York City police officers, both of whom were injured while performing their duties. One of them, Gerard McCambridge, placed his hand on a fellow detective’s shoulder to steady himself while removing papers from a drawer, and was injured when the other detective unexpectedly moved away. The other, Richard Knight, slipped on wet pavement while entering his police car. See id. at 566-67. This Court found that both McCambridge’s and Knight’s claims arose from “accidents within the common sense definition adopted in Lichtenstein.” This Court “distinguished... injuries sustained while performing routine duties but not resulting from unexpected events,” giving examples of back strains while lifting objects or leaning over cars and/or loss of hearing resulting from pistol practice session. Id. at 568 (emphasis added). Moreover, this Court admonished the Appellate Division that it was “error... [to] focus[] on the petitioner’s job assignment” rather than “the precipitating cause of injury.” Id at 567. In Pratt v. Regan. 68 N.Y.2d 746, 747 (1985), the applicant, a fireman performing his duties, “was injured while exiting a fire truck at normal speed and wearing approved safety shoes, when he caught his right heel on the running board, lost his balance, and came down on his left leg in a pothole.” Citing Liechtenstein and McCambridge. this Court found that “[cjatching a heel on a running board and thus losing balance may be a risk of the work performed, but coming down hard upon the other foot in a pothole is not.” Id In Starnella v. Bratton. 92 N.Y.2d 836, 838 (1998), this Court again quoted Lichtenstein for the proposition that an accident was “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” This Court found that a police officer who had slipped on a pool of water in the bathroom while on duty had suffered an accident, terming this a “misadventure” similar to those in McCambridge. See id. at 839. However, another officer who 2 The Lichtenstein decision involved a New York City Administrative Code section that was identically worded to R&SSL § 605-a, but Liechtenstein and its progeny have been repeatedly and universally applied to State as well as City retirement benefits. See, e.g., Pratt v. Regan. 68 N.Y.2d 746 (1985) (applying Liechtenstein and McCambridge to benefit application brought under the Retirement and Social Security Law). 5 fell down the stairs “as a result of [his] own misstep, without more," was not “so out-of-the-ordinary or unexpected as to constitute an accident.” Id. (emphasis added). Finally, in Kenny v. DiNapoli, 11 N.Y.3d 873 (2008), this Court considered another “misstep” case in which an officer slipped on a wet ramp. This Court held that the petitioner “knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred,” and therefore, the event could not be considered “unexpected.” Id. at 875.3 However, this Court again repeated its holding in McCambridge that, in order to fall outside the category of an accident, an injury must result from “activity undertaken in the performance of ordinary employment duties.” IT at 874 (emphasis added); see also Cantone v. McCall 289 A.D.2d 863, 864 (3d Dept. 2001) (citing Starnella and Pratt to hold that tripping over spools constituted an accident), Brown v. Hevesi, 19 A.D.3d 858 (3d Dept. 2005) (citing McCambridge to find that police sergeant who fell when ladder collapsed had suffered an accident), and Leary v, New York City Empl. Ret. Svs.„59 A.D.3d 547, 549 (2d Dept. 2009) (citing McCambridge and Starnella to find an accident where a teacher "slipped due to the wet condition of her shoes from the snow she brought in from outside the school building"); Balduzzi v. McCall 220 A.D.2d 796, 797 (3d Dept. 1995) (citing McCambridge and finding that the petitioner had suffered an accident where "the stair tread that precipitated petitioner's fall was in no way related to his employment; it merely furnished the occasion for the occurrence"). Thus, the sum total of this Court’s jurisprudence establishes that, while a routine misstep resulting from inattention in the face of a known hazard is not an accident, this category only applies to events that occur (a) during the performance of “ordinary” or “routine” employment duties, and (b) without a precipitating “unexpected event.” In other words, only routine risks of employment, not any and all such risks, will render a resulting injury non-accidental, and as the McCambridge court was at pains to state, an injury may be accidental even if it is suffered in the line of duty. In the instant case, the Appellate Division majority transgressed this precedent in two ways. First, while giving lip service to Lichtenstein and its progeny, the majority opinion ignored the requirement that a non-accidental injury arise from “ordinary” and “routine” circumstances. The majority gave controlling weight to the fact that Mr. Kowal was trained in using firearms and responding to shooting incidents and that responding to violence was listed in his job description- in other words, that such things were part of his duties - without taking the further step of determining whether they were ordinary or routine parts of his duties. See Kowal, 145 A.D.3d at 1153-54. Indeed, the majority summed up its holding by “conclude[ing] that petitioner's actions in response to the assailant's shots were in furtherance of his responsibility to safeguard and protect the individuals in the courthouse and not inconsistent with his court officer duties, training and obligations.” IdL at 1154. In other words, its holding rested upon the premise that risks 3 Additionally, traversing a ramp which is actually known to be hazardous might also qualify as “willful negligence,” which exempts any resulting injury from the category of “accidental” for retirement purposes. See R&SSL § 605-a(a)(l); Robinson v. New York State and Local Retirement Svs., 192 A.D.2d 951, 952 (3d Dept. 1993) (willful negligence occurs where an employee acts “in conscious disregard of the consequences of his actions”). 6 emanating from any and all duties, as opposed to only routine and ordinary duties, were sufficient to render a resulting injury non-accidental - a premise that is directly contrary to Lichtenstein and its progeny. The Third Department majority also went beyond the Lichtenstein line of cases by holding that an injury is not accidental if it arises from a “reasonably foreseeable” event. See id. at 1153. Nowhere do any of the Liechtenstein cases mention foreseeability. Instead, this Court’s precedents refer to unexpected events, which are not the same thing. An event may be foreseeable but still unexpected. It is foreseeable that an airplane might crash or that a motor vehicle might get into an accident, but no one enters a plane or a car expecting such things to happen. Indeed, the very hazards at issue in McCambridge-a fellow detective making a sudden movement and an area of wet pavement - are eminently foreseeable, but that did not preclude this Court from determining that they were unexpected, nor did the foreseeability of slipping on a wet bathroom floor preclude this Court from making a similar determination in Starnella. Indeed, to conflate “unexpected” with “unforeseeable,” as the Third Department majority did, would import a contributory negligence standard to the Retirement and Social Security Law as opposed to the “willful negligence” that the statute actually requires. When considered in the correct light, Mr. Kowal’s injury clearly resulted from an accident. While responding to a shooting may be part of a court officer’s duties, it is not an ordinary part of those duties. There is nothing routine or everyday about a courthouse shooting. As detailed at the hearing, Mr. Kowal trained for shooting incidents as an emergency, not as a routine, ordinary event that court officers could expect to encounter on a frequent basis. Moreover, while in this day and age it may possible to foresee that, at some unknown time and place, a disgruntled litigant might show up at the courthouse with a gun and act out his frustration, it is certainly not expected that this will happen, and people do not go to the courthouse on a daily basis expecting to be shot at. Thus, as Judge Lynch made clear in his cogent dissent, the precipitating cause of Mr. Kowal’s injury was in no way “ordinary” or “routine,” and was also an unexpected event, thus placing this case squarely within the bounds of Liechtenstein. McCambridge and their progeny. The Appellate Division cases relied upon by the majority and by respondent at the administrative level — Berbenich v. Regan. 81 A.D. 2d 732 (3d Dept. 1981), Taylor v. Regan. 103 A.D.2d 884 (3d Dept. 1984), and Beckley v, Nitido. 123 A.D.3d 1330 (3d Dept. 2014), are not to the contrary. To begin with, these cases were wrongly decided under Liechtenstein and their progeny. In the pre-McCambridge case of Berbenich. where a police officer entered a church with gun drawn and where his firearm discharged accidentally due to a door flying open, the Third Department found that the injury resulted from the officer’s “expected and foreseeable” duties without considering whether the incident was ordinary or routine. See Berbenich. 81 A.D.2d at 732. Clearly, a door suddenly flying open-an event that even the Berbenich court characterized as unexpected - and leading to an accidental firearm discharge and the death of a pastor is in no way “routine,” “ordinary” and/or to be expected as a result of a police officer entering a church. Indeed, it is difficult to imagine a chain of events more freakish and unexpected than that. The courts in Taylor, another pre-McCambridge case where the petitioner was a police officer who shot an armed man from 20 feet away and, in a separate incident, shot dead an escaped 7 convict who was holding a hostage, and Beckley, where a police officer shot at and missed an individual coming toward him on the hood of a vehicle, likewise never considered whether the incidents were ordinary or routine, which they clearly were not. See Taylor, 103 A.D.2d at 884; Beckley, 123 A.D.3d at 1331. These courts assumed that any incident within the scope of an officer’s training was non-accidental, which again is directly contrary to this Court’s holding in McCambridge. But even aside from the fact that Berbenich, Taylor and Beckley were wrongly decided, they are plainly distinguishable from the instant case. Berbenich, as noted above, involved an accidental discharge of firearms rather than involving an assault on an officer in any sense, and is thus not similar or instructive as to the instant case. And the Taylor and Beckley cases are also distinguishable from this case in two significant ways. First, Mr. Kowal is a court officer rather than a police officer, and it is less expected that a court officer will encounter guns and deadly violence; thus, even if a shooting incident can plausibly be described as “routine” in the context of a police officer’s duties (which petitioner submits that it certainly cannot), it is not routine or ordinary for a court officer. And second, as Judge Lynch pointed out in his dissent, neither Taylor nor Beckley involved an officer who was himself being shot at when he fired his weapon. The fact that Mr. Kowal was in the line of fire distinguishes this case and plainly removes it from anything ordinary or routine. In sum, this Court’s decisions in Lichtenstein, McCambridge, Pratt, Starnella. and Kenny, supra, were never meant to lead to the conclusion that being shot at and returning fire are “all in a day’s work” for a court officer such as Mr. Kowal, and such a conclusion is explicitly precluded by this Court’s holding that only “routine” and “ordinary” risks fall outside the category of an accident. Nor does foreseeability alone render an event “expected.” Indeed, in a case decided shortly before Mr. Kowal’s, the Third Department recognized these very things in annulling the denial of benefits to a firefighter who was injured by exposure to colorless and odorless gases while effecting a rescue: In reversing the Hearing Officer's determination, respondent instead relied upon petitioner's job description, which indicates that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials. The dissent likewise relies heavily upon petitioner's job description and training. Taken to its immediate and logical conclusion, however, this position may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations; if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse. Whether an incident is so "sudden, fortuitous..., unexpected [and] out of the ordinary" that it qualifies as an accident within the meaning of the Retirement and Social Security Law remains a factual issue that should not be determined merely by reference to job descriptions. 8 Otherwise, emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers. Sica v. DiNapoli. 141 A.D.3d 799, 801 (3d Dept. 2016) (citations omitted) (emphasis added). The fact that “routine employment duties” does not mean “all employment duties” was also recognized by the Third Department in Cantone v. McCall 289 A.D.2d 863 (3d Dept. 2001). In Cantone. the petitioner was a municipal water treatment plant operator whose duties “included the back washing of certain filters.” One day, when he cleaned a filter, the valve didn’t close properly, leading to a flooding emergency. To stop the flood, Cantone proceeded to a manual shutoff valve in the pump room which he had never had to use before, and while doing so, tripped over spools of wire and was injured. The Third Department annulled, and key to its holding was the following conclusion of law: Although the valve had apparently stuck open on a few prior occasions and was scheduled to be replaced, petitioner had not previously experienced the problem and there is nothing in the record to demonstrate that the problem was routine. Accordingly, petitioner was confronted with the sudden and unexpected need to gain immediate access to the area under the stairwell while that access was hindered by spools of wire which were totally unrelated to petitioner's employment, and there is no evidence that the area under the stairwell was routinely accessed or traversed by petitioner or anyone else. In these circumstances, we agree with petitioner that his fall while attempting to step over the spools was the type of sudden, fortuitous event, unexpected, out of the ordinary and injurious in impact that constituted an accident. Id. (emphasis added); accord Tierney v. Comptroller, 90 A.D.3d 1215, 1215-16 (3d Dept. 2011) (police officer who fell on hidden debris was not injured as a result of a routine hazard when there was no evidence that debris had previously been observed in the vicinity); Murphy v. Comptroller. 92 A.D.3d 1022, 1023 (3d Dept. 2012) (injury was accidental, not routine, where firefighter slipped on a patch of black ice, noting inter alia that “[petitioner. . . testified that he had never experienced icy conditions on the taxiway [where he fell] unless it had snowed”); Leuenberger v. McCall, 235 A.D.2d 906, 907 (3d Dept. 1997) (although loading patients into a van was a routine duty of a nurse, the fact that a 200-pound van door fell at just that moment was unusual and unexpected); Scibilia v. Regan. 183 A.D.3d 1096 (3d Dept. 1992) (although there is a risk of tipping any time a large machine is tilted, the fact that the machine fell toward other workers and required the petitioner to catch it was sudden and unexpected). The same principles apply with equal force in the instant case. To hold that any and all 9 incidents that fall within a court officer’s training, no matter how exigent or unexpected, are non-accidental would, as in Sica, “wholly eviscerate accidental disability retirement protection” for such officers when they respond to emergencies, and would, as in Cantone. relieve the respondent of the duty to demonstrate that the incident giving rise to the injury was routine. A holding such as rendered by the Third Department majority in the instant case is thus contrary to Liechtenstein and its progeny, and indeed would not only slight officers such as Mr. Kowal who respond to unexpected shootings with skill and valor but would result in the incongruous result that an officer who is hit by a car while crossing the street would receive a greater disability pension than one who is shot at by a crazed gunman such as Mulqueen. This Court should therefore reverse the Third Department’s holding and determine that Mr. Kowal’s injury was accidental as a matter of law. B. Respondent’s Finding that Mr. Kowal Was Not Assaulted is Unsupported by Substantial Evidence and Contrary to Its Own Administrative Precedent. As a second and independent ground for reversal, this Court should find that Mr. Kowal was injured as the result of an assault and that any finding to the contrary was lacking in substantial evidence. It is undisputed that the respondents deem assaults to be accidents within the meaning of the Retirement and Social Security Law. This policy was in announced in Matter of Gerald Stefanelli. Reg. No. 334419-1, H.C. No. 01-0237 (March 11, 2002) (R.181-83), in which a court officer applied for disability retirement benefits after being assaulted by a prisoner in the courtroom. (R.181-82). Specifically, the court officer in Stefanelli “grabbed the [prisoner], whereupon the [prisoner] began to kick, punch, scream and attempted to bite” him. (R.182). In granting the court officer's application for benefits, respondents ruled that, “[t]hough [a court officer’s] job description states that his duties included ‘physically restraining] unruly individuals, it has never been held that a physical assault by the restrained person removes the incident from the definition of an ‘accident.’” (R.182). Accordingly, because Stefanelli "sustained injury as the result of a physical assault,” respondents correctly found that he was entitled to benefits. (R.182). (emphasis added); see also Welsh v. Comptroller. 67 A.D.3d 1167, 1169 (3d Dept. 2009) (acknowledging that, pursuant to Stefanelli, an assault is an accident). In the instant case, the Appellate Division majority found that Mr. Kowal was not assaulted because he was one of several people in the courthouse lobby and Mulqueen’s shots were not fired specifically at him. See Kowal, 145 F.3d at 1154-55. But as observed by Judge Lynch in his dissent, an attack need not be targeted at a specific person to be an assault. The Penal Law recognizes the crime of depraved indifference assault, see PL § 120.10(3), and that one of the ways such assault may be committed is by firing indiscriminately into a crowd, see People v. Archie, 118 A.D.3d 1292, 1293-94 (4th Dept. 2014); People v. Hamilton, 52 A.D.3d 227, 227-28 (1st Dept. 2008), and there is no cogent basis to conclude that some different definition of assault should apply in disability benefit cases.4 Hence, it is submitted that the law supports the 4 In opposition to Mr. Kowal’s motion for leave to appeal, the only counter-argument provided by respondent was that “this is not a criminal matter.” True. But Error! Main Document Only.given that (a) the controlling issue is whether Mr. Kowal was assaulted, and (b) assault is a crime, then criminal cases, which are the primary body of law in which the boundaries 10 dissenting opinion of Judge Lynch - i.e., that it is enough for Mr. Kowal to have been one of the group of people targeted by assailant Mulqueen. This means that the majority’s concession that Mr. Kowal “was within the assailant’s line of fire” and that “the shots came within inches” of him, see Kowal, 145 F.3d at 1154, is enough to establish that he was the victim of an assault. He was a target, and it was not necessary that he have been the only target. Moreover, given that Mulqueen was not being subdued or restrained by court officers when the incident began, but instead launched an unprovoked attack from outside the courthouse door,5 this incident cannot be characterized in any way other than an assault. Indeed, as discussed in petitioner’s briefs to the Appellate Division, the incident was a terrorist attack within the meaning of Section 490.25 of the Penal Law, as it was intended to “affect the conduct of a unit of government by murder.” Such an incident is even more out of the ordinary, and hence even more clearly an accident, than a non-terrorist assault. Hence, any contrary finding is not supported by substantial evidence and must be reversed. Moreover, even if there is substantial evidence that the incident resulting in Mr. Kowal’s injury was something other than an assault-which there is not-any such finding is also subject to reversal because it contradicts the respondent’s own precedent. Although the Retirement System purports to distinguish between assaults and injuries which occur when restraining disruptive individuals - and although that distinction has been upheld by the Third Department, see Welsh, supra- the original Stefanelli decision, in which the System announced its policy that assaults are accidents, involved precisely a situation where Officer Stefanelli was injured while restraining a defendant in the courtroom. Furthermore, in the other administrative precedents of Matter of Kutzma. Reg. No. 3555433-6, H.C. No. 08-0149 (Comptr. 2010),6 Matter of Totesau-Johnson, Reg. No. 3972654-2, H.C. No. 07-0353 (Comptr. 2010), and Matter of Weeks. Reg. No. 3776903-1, H.C. No. 07-0181 of assault are clarified, are instructive in determining whether the incident was an assault or not. Certainly, there is no case law holding that an assault means something different in the retirement context from what it means in criminal law, nor is there any cogent argument for why a different definition should apply. 5 This factor- that Mr. Kowal was not subduing, restraining and/or escorting Mulqueen at the time the first shot was fired, and was instead performing unrelated duties relating to the X-ray machine in the courthouse lobby-distinguishes the instant case from such cases as Welsh, supra, as well as Kilbride v. Comptroller, 95 A.D.3d 1496 (3d Dept. 2012) and Silver-Smith v. NYSLERS, 298 A.D.2d 696, 697 (3d Dept. 2002), which were relied upon by the majority and all of which involved officers who were actively restraining unruly individuals before being attacked by them. 6 The hearing officer’s decision in Kutzma does not describe the underlying facts of the assault; however, the undersigned, who litigated an Article 78 petition arising out of the Kutzma matter, is familiar with those facts. 11 (Comptr. 2009) (R.l 85-202), the respondent likewise found - or sometimes even conceded - that court officers injured while subduing unruly defendants and/or effectuating arrests in the courtroom had suffered compensable accidents. In Matter of Pfeifer. Reg. No. 0A75992-8, H.C. No. 02-0315 (Comptr. 2004) (Add.1-6),7 in which a police officer was injured after a suspect he had arrested and was attempting to secure in the back seat of a police car “donkey-kicked” him, and Matter of Thorpe, Reg. No. 3961646-1, H.C. No. 10-0106 (Comptr. 2011) (Add.7-19), in which a therapy aide was suddenly thrown across the room by a patient she was escorting, the Comptroller also found or conceded that accidents had occurred. And in Matter of Wilt, Reg. No. 0A85237-6, H.C. No. 07-0347 (Comptr. 2010) (Add.20-24), the Comptroller found that an accident occurred when a suspect who was being apprehended “suddenly and precipitously spun away” from the arresting officer. Again, all of these situations are far more common and far less violent than the potential mass shooting incident that Mr. Kowal thwarted. This brings the instant case well within the line of cases holding that that "an agency's failure to provide a valid and rational explanation for its departure from its prior precedent mandates a reversal, even though there may be substantial evidence in the record to otherwise support the determination." Matter of Corona Realty Holdings, LLC, Respondent, v Town of North Hempstead, 32 A.D.3d 393, 395 (2d Dept. 2006) (emphasis added), citing Matter of Charles A. Field Delivery Service, Inc, (Roberts), 66N.Y.2d 516, 520 (1985); see also Civil Serv. Emples. Ass'n v. N.Y. State Pub. Emnl. Reis. Bd.. 300 A.D.2d 929, 930-31 (3d Dept. 2002) ("where an agency's decision wholly departs from its own precedent in like cases, it will be deemed arbitrary and capricious unless the agency sufficiently explains the departure"). The very fact that no logical distinction can be made between the cases in which the Comptroller has found that an injury resulting from a physical confrontation is an accident and those in which it does not, is a violation of the principle that “cases with like antecedents should breed like consequences.” Charles A. Field, 66 N.Y.2d at 519-20.8 And prior administrative cases need not be precisely like the instant case in order to bind the agency: they must merely “appear to be substantially similar,” which the decisions at issue here certainly are. See Ramadhan v. Morgans Hotel Group Mgmt., LLC, 91 A.D.3d 1141, 1141-42 (3d Dept. 2012); accord Winters v. Advance Auto Parts, 119 A.D.3d 1041 (3d Dept. 2014) (applying Charles A. Field where agency deviated from the holdings of prior decisions despite factual distinctions). Thus, even if there were otherwise substantial evidence to support respondent 's determination, his departure from prior precedent without an explanation requires reversal. Finally, appellant respectfully submits that this Court should consider the moral and practical dimensions of the Comptroller’s decision in this case. If the Comptroller’s disregard of Stefanelli is allowed to stand, then assaultive conduct on court officers (and any bystanders at a government facility) when a mass shooting occurs would go uncompensated if and when a court officer decides to stand up and risk his life to thwart the attack. Being shot at by a mass shooter 7 Citations to “Add.” refer to the addendum to Mr. Kowal’s opening brief in the Third Department. 8 Among the authorities cited by the Charles A. Field court for this proposition was an article entitled “Standardless Administrative Adjudication,” which this Court obviously saw as something to be avoided. 12 will be treated as nothing more than “all in a day’s work” for the men and women who protect our courts. This case cries out for reversal and this Court should decide it accordingly. Conclusion Accordingly, in light of the foregoing, this Court should reverse the decision of the Appellate Division, Third Department, find that Mr. Kowal’s injuries resulted from an “accident” as that term is construed under the Retirement and Social Security Law, remand to respondent for further proceedings consistent with such finding, and grant such other and further relief to Mr. Kowal as it may deem just and proper. The Court’s consideration in this matter is appreciated. Respectfully submitted. fonathan I. Eaelstein Cc: New York State Attorney General Attn: Kate Nepveu, Esq. 13