In the Matter of Robert W. Kowal, Appellant,v.Thomas P. DiNapoli, et al., Respondents.BriefN.Y.February 7, 2018THE CAPITOL, ALBANY, NY 12224-0341 ● PHONE (518) 776-2050 ● FAX (518) 915-7724 ● WWW.AG.NY.GOV STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN ATTORNEY GENERAL Writer Direct: (518) 776-2016 BARBARA D. UNDERWOOD SOLICITOR GENERAL October 4, 2017 Hon. John P. Asiello Chief Clerk and Legal Counsel Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Matter of Kowal v. NYS Comptroller, APL-2017-00136 Dear Mr. Asiello: Respondents the New York State Comptroller and the New York State and Local Employees’ Retirement System submit this letter in response to your letter of July 10, 2017, notifying the parties that the Court has selected this appeal for expedited merits consideration under Rule 500.11. At issue is a determination by respondents denying the application of petitioner-appellant Robert W. Kowal for accidental disability retirement benefits, and thereby relegating him to receive ordinary disability retirement benefits. The Appellate Division confirmed the determination because it was consistent with this Court’s precedent defining accidents under the Retirement and Social Security Law (the “R.S.S.L.”) and because it was supported by substantial evidence in the record. For the reasons set forth in respondents’ brief to the Appellate Division and further explained below, this Court should affirm. IwLsShr’ i Page 2 Statutory Background For uniformed court officers such as petitioner, there are two kinds of permanent disability retirement benefits potentially available: ordinary disability retirement benefits and accidental disability retirement benefits.1 Ordinary disability retirement benefits are payable to uniformed court officers (and other members of the Coordinated Retirement Plan, see R.S.S.L. § 600) with at least ten years of service who become permanently incapacitated. See R.S.S.L. § 605. 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. Although the potential amount of ordinary disability retirement benefits payable to a member varies widely, depending on the member’s salary and length of service, such benefits are generally no less than a third of the member’s final average salary, and can be as favorable as a service retirement benefit. See R.S.S.L. § 605(d). Accidental disability retirement benefits are available only to uniformed court officers injured as the result of an “accident” sustained in the performance of duty, within the meaning of R.S.S.L. § 605-a. This Court has explained that an “accident” is a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,” and that “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 Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 (1982). Members who can make the stringent showing required for these benefits receive on an annual basis 75% of their final average salary. See R.S.S.L § 605-a(e). The benefit is reduced, however, by any benefit payable under the Workers’ Compensation Law. See R.S.S.L. §§ 64(a), 605-a(e). 1 As we have explained in our briefs to the Court in Matter of Kelly v. DiNapoli, APL-2016-00083, and Matter of Sica v. DiNapoli, APL-2016-00164, for members of the New York State and Local Police and Fire Retirement System, a third type of disability benefit is potentially available, namely performance of duty disability retirement benefits. See R.S.S.L. § 363-c. Page 3 Facts and Procedural History Petitioner was a Court Officer Sergeant who been a state court officer for fifteen years at the time of the incident at issue here. (R. 49, 121.2) At about nine in the morning on February 8, 2012, petitioner was in the courthouse lobby with two other court officers. (R. 50-51.) An individual, later identified as Timothy Mulqueen (R. 141), shot a hole through the glass courthouse door with a shotgun and proceeded to fire two more times into the courthouse (R. 51-52). Petitioner believed that one of Mulqueen’s bullets missed him by inches. (R. 68.) Another court officer was struck by a pellet from Mulqueen’s shotgun, in a location variously described as the arm, hand, or wrist. (R. 79, 125, 142.) Petitioner returned fire using his work-issue handgun (R. 84-85), from about fifteen feet away (R. 53). Mulqueen was struck by petitioner’s bullets and collapsed, and later died. (R. 53, 69.) A court officer such as petitioner, according to the official job description, “provides security in the courtroom and throughout court facilities and offices”; “maintains order by removing or calming disruptive individuals”; “restrains, removes or arrests persons causing or attempting to cause disturbances”; and “provides assistance and assumes other appropriate responsibilities in emergency situations.” (R. 217-218.) Court officers are also required to know guidelines, rules, and procedures for “search, arrest, and ‘use of force’”; for “the possession, control, use, registration, inspection, and safeguarding of firearms”; for “handling emergency responses in situations such as . . . bomb threats, hostage situations, crowd control, and hazardous materials”; for “facility lock-down and building evacuation”; and for “handl[ing] conflict situations.” (R. 219.) Petitioner conceded that he was responsible for the safety of all persons in the courthouse, was expected to provide security in the courthouse, and was required to respond promptly to all emergency situations (R. 89-90). Further, petitioner was aware that shootings had occurred at courthouses around the country. (R. 91-92.) As stated in the Unified Court System’s Court Officers Rules and Procedures Manual, which petitioner had read “[m]any 2 Citations to “R. __” are to pages in the Record on Appeal submitted with the parties’ briefs to the Appellate Division. Page 4 times” (R. 77), court officers “are confronted daily with situations where control must be exercised in order to protect themselves and the public safety” (R. 242). Accordingly, as petitioner testified, he was trained in the use of physical force, including deadly physical force. (R. 88, 101-102.) Petitioner received yearly training in handguns (R. 76, 86), which court officers carried “to protect ourselves and the public” (R. 93), and which petitioner was required to carry fully loaded while on duty (R. 61, 225, 229). After the February 2012 incident, petitioner was diagnosed with post- traumatic stress disorder and applied for accidental disability retirement benefits pursuant to Retirement and Social Security Law § 605-a. (R. 121.) The Retirement System denied the application on the ground that the incident was not an accident within the meaning of § 605-a. Petitioner challenged the determination in this article 78 proceeding, arguing that he was injured as the result of an assault, a kind of incident that respondents for years have treated as an “accident” within the meaning of the R.S.S.L., because being assaulted is not considered a risk that members accept as part of their jobs. See Matter of Ammann v. N.Y. State Comptroller, 13 A.D.3d 858, 858 (3d Dep’t 2004) (describing Comptroller’s statutory construction of “accident” to include assaults), lv. denied, 5 N.Y.3d 702 (2005); see also Matter of Stefanelli, Reg. No. 3344419-1, H.C. No. 01- 0237 (March 11, 2002) (hearing officer decision stating, “it has never been held that a physical assault by [a] restrained person removes the incident from the definition of an ‘accident’”) (reproduced at R. 181). The Appellate Division, Third Department, confirmed the determination, with one Justice dissenting only over the question whether the incident was an assault. The majority held that “petitioner was injured during the course of executing the very duties that he had been assigned to perform and in the context of responding to a risk that was both reasonably foreseeable and, more to the point, inherent in the execution of his regular duties.” 145 A.D.3d 1152, 1153. Specifically, “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.” Id. at 1154. Finally, the Page 5 majority concluded that “even though the record contains proof from which it could be concluded that petitioner was injured as the result of an assault, this does not negate the Comptroller’s finding that petitioner was injured during the course of the performance and execution of his job duties.” Id. at 1155. The dissent argued that because “petitioner, himself, was one of the targets of the assailant’s gunfire and immediately in harm’s way,” the incident should have been deemed an assault and, accordingly, an accident. Id. at 1156 (Lynch, J., dissenting). This Court granted leave to appeal, and subsequently directed submissions pursuant to 22 N.Y.C.R.R. § 500.11. ARGUMENT SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION THAT PETITIONER WAS NOT INJURED IN AN ACCIDENT The Appellate Division properly held that petitioner’s post-traumatic stress disorder did not arise from an “accident” within the meaning of R.S.S.L. § 605-a, because petitioner was not assaulted, but rather was injured as a result of a risk inherent in his job. For purposes of the R.S.S.L., this Court has adopted “the commonsense definition of” an accident as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” Lichtenstein, 57 N.Y.2d at 1012. But this general commonsense definition is subject to an important contextual qualifier: “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. (emphasis added). In other words, where an event is “a risk of the work performed,” it is not an accident. Matter of Starnella v. Bratton, 92 N.Y.2d 836, 838 (1998); accord Matter of Pratt v. Regan, 68 N.Y.2d 746, 747 (1986); Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984). For years, respondents have accordingly construed the term “accident” to include assaults, on the ground that the risk of being assaulted is not a Page 6 risk that Retirement System members are expected to accept as part of their job duties, even though the act of an assault is an intentional act by the assaulter. (See R. 181.) On the other hand, where a Retirement System member, including a court officer, is injured as the result of an attempt to restrain a disruptive individual while performing the member’s duties, respondents have consistently found that such injuries are not accidental, but rather the result of a risk inherent in the member’s employment. And the Appellate Division has repeatedly upheld this distinction, holding that when court officers are injured when controlling, restraining, or removing disruptive individuals, they have not suffered accidents for retirement disability purposes. See Matter of Boncimino v. New York State Comptroller, 125 A.D.3d 1089, 1090 (3d Dep’t 2015); Matter of Roberts v. DiNapoli, 117 A.D.3d 1166, 1166 (3d Dep’t 2014); Matter of Emerson v. DiNapoli, 115 A.D.3d 1145, 1145 (3d Dep’t 2014); Matter of Kilbride v. New York State Comptroller, 95 A.D.3d 1496, 1496 (3d Dep’t), lv. denied, 19 N.Y.3d 813 (2012); Matter of Rykala v. New York State Comptroller, 92 A.D.3d 1077, 1078 (3d Dep’t 2012); Matter of Wise v. New York State Comptroller, 38 A.D.3d 1032, 1034 (3d Dep’t), lv. denied, 9 N.Y.3d 811 (2007); Ammann, 13 A.D.3d at 859. It is undisputed here that petitioner’s regular job duties included controlling, restraining, or removing disruptive individuals, and that petitioner was trained in the use of physical force and required to carry a loaded handgun while on duty. (R. 61, 80, 82, 88, 101-102, 217-219, 225, 229, 242.) Having to exercise physical force, including using a handgun, to control a disruptive individual and provide security to those in the courthouse, is a risk of the job of a court officer. And, as the Appellate Division noted, not only was petitioner untouched by Mulqueen’s shots, but “nothing in the record suggests that [petitioner] was any more of a target—or was in any greater danger—than the other people in the immediate vicinity.” 145 A.D.3d at 1155. Therefore, even if there was some evidence in the record from which it could be concluded that petitioner was injured as the result of an assault, that evidence did not require annulling respondents’ determination: substantial evidence review “demands only that a given inference is reasonable and plausible, not necessarily the most probable.” Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499 (2011) (internal citation and Page 7 quotation omitted). The Appellate Division thus properly confirmed respondents’ determination. In response, petitioner principally relies on Penal Law § 120.10(3), which provides that a person is guilty of assault in the first degree when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.” But Mulqueen did not seriously physically injure petitioner, who was untouched by Mulqueen’s shotgun pellets. Indeed, it is unclear if anyone was seriously physically injured. See Penal Law § 10.00(10) (defining serious physical injury). The only person who was physically injured was an officer who was struck by a pellet in a location variously described as the arm, hand, or wrist. (R. 79, 125, 142.) And one cannot commit attempted depraved indifference assault. People v. Williams, 40 A.D.2d 1023, 1024 (2d Dep’t 1972). Thus, even if respondent were bound by the Penal Law in making this administrative determination, which it is not, it did not err: under the Penal Law, petitioner was not assaulted. Petitioner attempts to avoid this straightforward application of substantial-evidence review by arguing that the Appellate Division erred in characterizing the law governing accidents. Specifically, petitioner claims that “only routine risks of employment, not any and all such risks, will render a resulting accident non-accidental,” and therefore the Appellate Division erred when it did not consider whether responding to Mulqueen was an “ordinary or routine part[ ] of his duties.” (Petitioner’s Letter dated August 1, 2017 at 6, emphasis in original.) But this Court has never held that mere rarity can create an accident for retirement disability purposes. Rather, something is expected, and therefore not an accident, if it is a risk of the work performed.3 Thus, when this Court held that two officers were injured in accidents, it explained: “It is critical to the determination in each of the present cases that there was a 3 It may also be expected for other reasons, such as if the employee “knew of the hazard that led to his injury before the incident occurred.” Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 875 (2008). Page 8 precipitating accidental event . . . which was not a risk of the work performed.’” McCambridge, 62 N.Y.2d at 567-68. Similarly, this Court has found that “a police officer injured as he reached across the hood of a car to place a summons on its windshield was not entitled to accident disability retirement, because performance of his routine duties, and not an unexpected event, had caused his injury.” Starnella, 92 N.Y.2d at 838 (citing Lichtenstein, 57 N.Y.2d at 1012). Finally, “Catching 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,” and therefore is an accident. Pratt, 68 N.Y.2d at 747-48. In none of these cases did the Court rely on how frequently the employee encountered those risks, merely whether the risk fell within the category of the work performed. Contrary to petitioner’s claims, this focus on the risks of the work performed, as demonstrated through the training and job descriptions of an employee, does not “wholly eviscerate accidental disability retirement protection.” (Petitioner’s Letter at 10.) Petitioner quotes an Appellate Division decision that respondents have appealed to this Court. See Matter of Sica v. DiNapoli, 141 A.D.3d 799, 801 (3d Dep’t 2016), lv. granted, 29 N.Y.3d 908 (2017). Respondents’ brief to this Court in that case explains why the case was wrongly decided. But this focus on the risks of the work performed is precisely why respondents construe the term “accident” to include an assault—a construction that petitioner fully embraces here. In summary, substantial evidence supports respondents’ determination that petitioner was not assaulted during the February 2012 incident. Rather, he was injured as a result of the valiant performance of the very duties he was expected to perform—he successfully restrained an extremely disruptive individual who might otherwise have caused tremendous harm. Because that incident was not an “accident” within the meaning of the R.S.S.L., this Court should affirm the judgment of the Appellate Division. Page 9 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General KATE H. NEPVEU Assistant Solicitor General cc: Jonathan I. Edelstein Edelstein & Grossman 501 Fifth Avenue, Suite 514 New York, NY 10017