In the Matter of Robert W. Kowal, Appellant,v.Thomas P. DiNapoli, et al., Respondents.BriefN.Y.February 7, 2018To be argued by JONATHAN I. EDELSTEIN Time Requested: 15 Minutes App. Div. Case No. 522576 Albany County Clerk Index No. 3448/15 NEW YORK STATE SUPREME COURT APPELLATE DIVISION - THIRD DEPARTMENT In the Matter of the Application of ROBERT W. KOWAL, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - against - THE NEW YORK STATE COMPTROLLER and THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, Respondents. REPLY BRIEF FOR PETITIONER JONATHAN I. EDELSTEIN EDELSTEIN & GROSSMAN Attorney for Petitioner 501 Fifth Avenue, Suite 514 New York, NY 10017 (212) 871-0571 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS Table of Authorities, 11 Preliminary Statement 1 Argument 1 POINT I RESPONDENTS’ DETERMINATION SHOULD BE ANNULLED 1 Conclusion 10 TABLE OF AUTHORITIES Cases: Beckley v. Nitido, 123 A.D.3d 1330 (3d Dept. 2014) 8 Berbenich v. Regan, 81 A.D.2d 732 (3d Dept. 1981) 8 Cantone v. McCall, 289 A.D.2d 863 (3d Dept. 2001) 2,3 Corona Realty Holdings, LLC v. Town of North Hempstead, 32 A.D.3d 393 (2d Dept. 2006) 7 Civil Serv, Emples. Ass'n v. N.Y. State Pub. Empl. Reis. Bd.„ 300 A.D.2d 929 (3d Dept. 2002) 7 Matter of Charles A. Field Delivery Service, Inc. (Roberts), 66 N.Y.2d 516 (1985) 7,8 Matter of Kutzma, Reg. No. 3555433-6, H.C. No. 08-0149 (Comptr. 2010) 7n Matter of Pfeifer, Reg. No. 0A75992-8, H.C. No. 02-0315 (Comptr. 2004) 1 Matter of Stefanelli, Reg. No. 334419-1, H.C. No. 01-0237 (March 11, 2002) 6,7 Matter of Totesau-Johnson, Reg. No. 3972654-2, H.C. No. 07-0353 (Comptr. 2010) 7n Matter of Weeks, Reg. No. 3776903-1, H.C. No. 07-0181 (Comptr. 2009) 6,7 -ii- McCambridge v. McGuire, 62 N.Y.2d 563 (1984) 4 Murphy v. Comptroller, 92 A.D.3d 1022 (3d Dept. 2012) 3 Ramadhan v. Morgans Hotel Group Mgmt., LLC. 91 A.D.3d 1141 (3d Dept. 2012) 8 Smith v. NYSLERS, 103 A.D.3d 966 (3d Dept. 2013) 4 Starnella v. Bratton, 92 N.Y.2d 836(1998) 4 Tierney v New York State Comptroller, 90 A.D.3d 1215 (3d Dept. 2011) . 3 Winters v. Advance Auto Parts, 119 A.D.3d 1041 (3d Dept. 2014) 8 Statutes and Regulations: R&SSL § 605-a 1 -iii- PRELIMINARY STATEMENT Petitioner ROBERT W. KOWAL ("Petitioner" or "Mr. Kowal”) respectfully submits this Reply Brief in response to the Brief for Respondents dated May 1 1, 2016, and in further support of his petition for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules vacating, annulling and setting aside a determination of respondent NEW YORK STATE COMPTROLLER denying petitioner Accidental Disability Retirement Benefits pursuant to Section 605-a of the Retirement and Social Security Law. POINT I RESPONDENTS’ DETERMINATION SHOULD BE ANNULLED As set forth in the main brief, respondent Kowal was a Court Officer Sergeant who acted heroically in response to a shooting incident on February 8, 2012. While Mr. Kowal was on duty at the Middletown City Court, one Timothy Mulqueen fired shots from outside the courthouse into the lobby. Mr. Kowal returned fire, killing Mulqueen, and was later diagnosed with disabling post- traumatic stress disorder. Despite his heroism, however, respondents subsequently denied him Accidental Disability Retirement Benefits, finding that the situation he confronted was “routine.” In fact, a courthouse shooting, which indisputably had never occurred before in New York State, was anything but routine, and moreover, the injury resulted from an assault, which the Comptroller has classified as a 1 compensable accident. Therefore, contrary to the arguments made in the respondents’ brief, the determination denying benefits to Mr. Kowal must be annulled. To begin with, contra Res. Brf. at 10, respondents are wrong in contending that the fact that no courthouse shooting had ever previously happened in New York is immaterial. Indeed, respondents supply the answer to their own argument by contending that “[t]he question is whether petitioner’s activity... was undertaken in the performance of regular or routine employment duties” (emphasis added). Not all employment duties are “regular or routine,” and the fact that a situation might potentially happen in the course of employment, or even that such situation was covered in Mr. Kowal’s training (see Res. Brf. at 8), does not automatically make it a “routine” situation. The fact that “routine employment duties” does not mean “all employment duties” is shown by 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. 2 This Court annulled the Comptroller’s denial of Accidental Disability Retirement Benefits to Cantone. Id. at 864. Key to this Court’s 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 sadden 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). There are other occasions in which this Court has similarly found that situations that had never happened in the past were not “routine” or “regular.” In Tierney v. Comptroller. 90 A.D.3d 1215, 1215-16 (3d Dept. 2011), this Court annulled a determination denying Accidental Disability Retirement Benefits to a police officer who fell on hidden debris, finding that “there was no proof whether debris had been observed on earlier occasions in the vicinity.” And in Murphy v. Comptroller. 92 A.D.3d 1022, 1023 (3d Dept. 2012), this Court annulled a determination against a firefighter who slipped on a patch of black ice, noting inter 3 alia that “[petitioner... testified that he had never experienced icy conditions on the taxiway [where he fell] unless it had snowed.” It has been settled law since McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) and Starnella v. Bratton, 92 N.Y.2d 836, 839 (1998) that not all injuries sustained in the performance of job duties are inherent risks of employment, and that instead, the key factor is the precipitating event that caused the injury. Only if the duties involved were routine, and even then only if the precipitating event were “not... unexpected,” does the injury fall outside the category of an accident. McCambridge. 62 N.Y.2d at 568; see also Smith v. NYSLERS. 103 A.D.3d 966, 967 (3d Dept. 2013) (citing McCambridge and Starnella). Thus, contrary to respondents’ contention, the fact that a shooting incident such as happened to Mr. Kowal had never previously occurred anywhere in the State is not only material but controlling. The uniqueness of the incident establishes that it was not even remotely “regular” or “routine.” Shooting incidents may have been included in Mr. Kowal’s training, but this was not routine training: instead, it was training for a situation that it was hoped and expected would never happen. The fact that Mr. Kowal knew what to do when shot at, and the fact that he responded with bravery and heroism, doesn’t make the incident “routine” any more than Cantone’s training in emergency shutoff procedures made routine the flooding situation he confronted. 4 Nor are the cases cited at pages 7-8 of the respondent’s brief to the contrary, because each of them involved a situation that was regular and routine. In every one of those cases, the petitioner was a court officer who engaged in an unarmed tussle with an unruly person. Such tussles happen often in New York courts, as shown by the very number of reported cases that involve them. A shooting such as happened to Mr. Kowal, on the other hand, was unique. For respondents to characterize Mulqueen merely as a “disruptive individual,” see Res. Brf. at 8, ignores the critical fact that he was not merely unruly but an active shooter, which had never happened before in New York and was thus not “routine” in any way, shape or form. For this reason alone, whether or not Mulqueen’s attack can be characterized as an assault, petitioner’s injury as a result thereof must be classified as an accident. And, contrary to respondents’ contention, Mr. Kowal was injured as the result of an assault, which is a second and independent reason why their determination must be annulled. Respondent cites certain cases in which physical confrontations with suspects have been deemed not to be assaults, see Res. Brf. at 9, but there are three critical distinctions between those cases and this one. First, none of them involved a shooting, which as noted above, is not a routine incident of a court officer’s employment in the way that an unarmed struggle is. Second, none of them involved an incident in which the attacker was outside the courthouse 5 when he attacked, and therefore, where the attack came from outside the quarter that the petitioner was duty-bound to guard. And third, in each of the cases cited by respondents, the officer in question was engaged in guarding or restraining the suspect before the physical assault began, as opposed to the instant case in which Mulqueen commenced his attack before he had any interaction whatsoever with Mr. Kowal or other court officers. This case does not arise from a situation that can be characterized as “restraint,” and instead cannot be characterized as anything but an assault. Indeed, if this was not an assault, one wonders what the Comptroller’s office would characterize as one. Moreover, as discussed in the main brief, it is clear from prior administrative decisions that the Comptroller does not actually draw the line it says it draws between assaults and restraint activities. Contrary to respondents’ contention, petitioner does not merely “disagreeÿ with the Comptroller over where the line between accident and assault is drawn in different cases,” see Res. Brf. at 9; instead, the prior determinations show that there is no “line.” As respondents do not dispute in their brief, both the Stefanelli and Weeks cases (R.180-83, 1 involved officers who were struggling with suspects at the time they were injured, and nevertheless, the Comptroller’s office characterized their injuries as resulting from assaults. Although respondents attempt to distinguish other prior administrative determinations from this case, they do not even try to distinguish 6 Weeks or Stefanelli.1 Nor do respondents attempt to distinguish the administrative determinations cited in footnote 3 of page 16 of the main brief, each of which also found that an accident occurred when an officer was physically attacked by a suspect he or she was securing or guarding at the time. As explained in the main brief, "an agency's failure to provide a valid and rational explanation for its departure from its prior precedent mandates a reversal, though there may be substantial evidence in the record to othenvise supporteven the determination." See 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), 66 N.Y.2d 516, 520 (1985); see also Civil Serv. Emples. Ass'n v. N.Y, State Pub. Empl. 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"). Indeed, as further discussed in the main brief, the very fact that no logical distinction can be Moreover, the distinction respondents attempt to draw between the instant case and the Kutzma and Totesau-Johnson determinations - namely that such determinations contained no description of the incident, see Res. Brf. at 9 - is unfounded. In Kutzma, “the applicant testified that... he was a court officer and was assaulted” while performing his duties in the courtroom. (R.188). And in Totesau-Johnson. the Comptroller noted that the applicant was injured on February 28, 2003 while effecting an arrest. (R.194). As such, it is clear that both cases did involve officers who were performing restraint duties at the time they were injured, and nevertheless were found and indeed conceded to have been injured as a result of compensable accidents. 7 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. 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 respondents ’ determination, their departure from prior precedent without an explanation requires annulment. Further, as discussed at length in the main brief, respondents’ reliance on Berbenich v. Regan, 81 A.D. 2d 732 (3d Dept. 1981), which involved an accidental discharge of a firearm, and Beckley v. Nitido, 123 A.D.3d 1330 (3d Dept. 2014), in which a police officer fired his weapon and missed but did not do so in response to being shot at, is unfounded, and neither case is instructive here due to the great factual differences between them and the instant case. Finally, petitioner notes that, if this Court accepts respondents’ logic, then a court officer will not be entitled to Accidental Disability Retirement Benefits even 8 if he is shot. Since the controlling factor in determining whether an incident is a compensable accident is not the nature of the injury but the nature of the incident, there would be no basis to distinguish between an officer like Mr. Kowal who suffers PTSD as a result of a shooting incident and one who, as a result of the same incident, is injured by a bullet. In other words, if this Court allows respondents’ determination to stand, it will tell officers who are shot in the line of duty that their injury is all in a day’s work. Such a finding would ill serve those who daily risk injury and even death for the benefit of all of us. And, contrary to respondents’ dismissive argument, see Res. Brf. at 11, this plainly would affect officers’ morale. While respondents are correct that the law enforcement officers of this State are dedicated professionals, they are also keenly aware of the risks they take and are aware of the fact that the Retirement System often doesn’t “have their backs” when they are injured. The Retirement and Social Security Law is a social contract, representing a promise by the State to take care of injured officers in exchange for the risks they accept, but all too often, the State treats injuries to its law enforcement personnel the way it would a slip-and-fall lawsuit. There is a moral dimension to cases like this one, and this Court should not allow the State to shirk its obligation to injured officers like Mr. Kowal by characterizing a shooting as a routine and ordinary incident of employment. Respondents determination should, and indeed must, be annulled. 9 CONCLUSION WHEREFORE, in light of the foregoing, petitioner respectfully requests that respondents’ determination be vacated, annulled and set aside, that this case remanded to respondents with instructions to grant 605A Accidental Disability Retirement Benefits to petitioner, and that this Court grant such other and further relief to petitioner as it may deem just and proper. Dated: New York, NY May 17, 2016 / n JONATHAN I. EDELSTEIN Of Counsel: Robert M. Grossman 10