In the Matter of James J. Kelly, Appellant,v.Thomas P. DiNapoli,, Respondent.BriefN.Y.January 2, 2018STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of JAMES J. KELLY, -against- THOMAS P. DiNAPOLI, as STATE COMPTROLLER, To be Argued by: Joseph M. Dougherty, Esq. Time Requested: 20 Minutes Petitioner-Appellant, Respondent-Respondent, For a Judgment Pursuant to A:tticle 78, CPLR, to review and annul the detmmination made by respondents to retire petitioner without providing for a pension for said petitioner as required by law, and for such other and further relief as the Court deems just and proper. Of Counsel: BRIEF OF APPELLANT JAMES J. KELLY No. APL-2016-00083 HINMAN STRAUB P.C. Appellate Counsel to Petitioner-Appellant James J. Kelly 121 State Street Albany, New York 12207 (518) 436-0751 Joseph M Dougherty, Esq. Date Completed: March 17, 2017 Table of Contents Page No. QUESTION PRESENTED .......................................................................................................... 1 PRELIMINARY STATEMENT ................................................................................................. 2 JURISDICTIONAL STATEMENT ............................................................................................ 3 STATEMENT OF FACTS ........................................................................................................... 4 LEGAL STANDARDS ............................................................................................................... 12 ARGUMENT ............................................................................................................................... 14 POINT I ....................................................................................................................................... 14 THE RECORD EVIDENCE COMPELS THE CONCLUSION THAT KELLY'S INJURY, SUSTAINED AFTER BLOCKING A RAFTER FROM FALLING ONTO A FELLOW OFFICER, WAS ACCIDENTAL ....................................................................... 14 POINT 11 ...................................................................................................................................... 18 THE APPELLATE DIVISON DECISION PRODUCES THE ABSURD RESULT THAT POLICE OFFICERS DISABLED WHILE HEROICALLY PROTECTING THE PUBLIC WILL ALWAYS RECEIVE LESS COMPENSATION THAN THOSE INJURED WHILE STROLLING DOWN A SIDEWALK ................................................ 18 POINT III .................................................................................................................................... 21 THE HEARING OFFICER'S DETERMINATION DID NOT RECEIVE THE PROPER WEIGHT ................................................................................................................................. 21 CONCLUSION ............................................................................................................................ 23 CERTIFICATE OF COMPLIANCE WITH 22 NYCRR 500.13 (C) .................................... 24 i TABLE OF CASES AND AUTHORITIES Page No. Cases Matter ofBe1mett v DiNapoli, 119 AD3d 1310 (3d Dept 2014) .................................................. 19 Matter of Cantone v McCall, 289 AD2d 863 (3d Dept 2001) ................................................ 15, 16 MatterofCarpentervDiNapoli, 104AD3d 1037,1038 (3dDept2013) ..................................... 18 Matter of Dicioccio v DiNapoli, 124 AD3d 1170 (3d Dept 2015) ............................................... 18 Matter of Franks vNew York State & Local Retirement Sys., 47 AD3d 1115 (3d Dept 2008) .. 19 Matter of Kelly v DiNapoli, 137 AD 3d 1470 (3d Dept 2016) ...................................... 9, 10, 11, 13 Matter of Kenny v DiNapoli, 11 NY3d 873 (2008) ...................................................................... 12 Matter of Lanzetta v DiNapoli, 130 AD 3d 1109 (3d Dept 2015) ................................................. 18 Matter ofLennberger v McCall, 235 AD2d 906 (3d Dept 1997) ................................................. 15 Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010 (1982) ......................................................................................... 12 Matter of McCambridge v McGuire, 62 NY2d 563 (1984) .............................................. 12, 13, 14 Matter ofMillerv AxelroQ, 147 AD2d 969 (4th Dept 1989) ....................................................... 21 Matter of Murphy v New York State Comptroller, 92 AD 3d 1022 (3d Dept 2012) .................... 14 Matter of Pratt v Regm1 68 NY2d 746 (1986) ............................................................................. 14 Matter of Sansone v Levitt, 67 AD2d 1044 (3d Dept 1979) ........................................................ 18 Matter of Schoales v DiNapoli, 132 AD3d 1184 (3d Dept 2015) ................................................ 18 Matter of Scibilia v Regan, 183 AD 3d 1096 (3d Dept 1992), lv denied 80 NY2d 759 (1992) .... 15 Matter of Scofield v DiNapoli, 125 AD 3d 1086 (3d Dept 2015) ........................................... 18, 19 Matter of Sica v DiNapoli, 141 AD3d 799 (3d Dept 2016), appeal dismissed 28 NY3d 1112 (2016) .................................................................................................................................. 19,20 Matter of Simpson v Wolm1sky. 38 NY2d 391 (1975) ................................................................. 21 Matter ofStarnella v Bratton, 92 NY2d 836 (1998) ..................................................................... 14 Matter of Yoga Vida NYC, Inc (Conrmissioner ofLabor), 28 NY3d 1013 (2016) ..................... 13 Statutes CPLR 5601 ................................................................................................................................ 3, 12 Retirement and Social Security Law§ 363 ..................................................................... 3, 7, 10, 12 Retirement a11d Social Security Law§ 374 ..................................................................................... 7 ii QUESTION PRESENTED (1) Did the Appellate Division err in concluding that substantial evidence suppmted the Comptroller's determination that an injury from blocking a rafter falling towards a colleague during a rescue operation was not accidental, i.e., a sudden, fmtuitous mischance, unexpected, out of the ordinary and injurious in impact? The Court ened in so holding. 1 PRELIMINARY STATEMENT Appellant police officer James J. Kelly ("Kelly") pe1manently injured his neck and shoulder holding up a falling rafter to protect his colleague. At the time ofthe injury, the two officers were working to rescue three people trapped in a partially collapsed house during Superstorm Sandy. Kelly's heroic efforts saved lives but left him unable to work. What Kelly seeks in tllis proceeding is simple: grant him the accidental disability retirement ("ADR") benefits that the Comptroller's own hearing officer deemed appropriate under these circumstances. The Comptroller's determination to reverse his own hearing officer and deny ADR benefits lacks records support. Instead, the determination is based upon an overly broad view of the duties of a police officer who is a first responder. This view essentially renders any injury during the course of a rescue non-accidental. The Legislative cannot have intended this result. For the reasons set forth below, Kelly respectfully requests that the Memorandum and Judgment of the Appellate Division be reversed, tlle Comptroller's determination be annulled, and the matter remitted to the Comptroller for further proceedings. 2 JURISDICTIONAL STATEMENT The Court has jurisdiction to entertain this appeal pursuant to CPLR 5601 (a), because the memorandum and judgment of the Appellate Division, Third Depatiment finally determines the proceeding and there was a dissent by two Justices on a question oflaw in favor of Kelly (seeR. 3-8). Although this matter ultimately presents one question- i.e., whether the Comptroller's determination was suppmied by substantial evidence- there are really three issues in this case: 1. Does substantial evidence support the Comptroller's determination that Kelly's injuries, which resulted from him blocking a rafter from falling onto a colleague while they were responding to a house damaged during HutTicane Sandy, were not accidental? This issue was raised below and is preserved for the Court's review (seeR. 25-27; 122-125). 2. Is the term "accident" in Retirement and Social Security Law § 363 being read too narrowly by the Comptroller to essentially exclude any injmy to a police officer during a rescue operation? This issue was raised below and is preserved for the Comi's review (seeR. 28-29; 123-125). 3. Did the hearing officer's decision receive the proper weight? This issue was raised below and is preserved for the Comi's review (seeR. 27-28). 3 STATEMENT OF FACTS On October 29, 2012, Kelly was on vehicle patrol as a unifonn officer of the Town ofOrangetown Police Department (seeR. 51). His shift was "in the midst" of"Superstorm Sandy" (R. 54). The storm stmck the area with "heavy rains, flooding, [and] winds in excess of90 miles an hour" (R 54). As he drove through the community Kelly observed "numerous trees, poles, [and] wires had fallen off onto the roadway blocking roads all over the town" (R. 55). Soon after Kelly began his patrol, "[t]he weather deteriorated so rapidly that [he and the other seven patrol officers] were ordered by [their] supervisors to ... take cover indoors and respond only to necessary calls" (R. 55). According to Kelly, was the first time he was "held at bay indoors" in "19 years on patrol" (R. 55). Around 6:00p.m., Kelly was dispatched to an address in Pearl River that was "approximately two miles away" from the station (R. 56). "[T]he call was for a tree falling through a house" and trapping the occupants (R. 57). Due to weather conditions, it took Kelly "[a ]bout ten minutes" - five times longer than normal- to reach the location (R. 56). En route, Kelly saw "numerous trees down" as well as "wires, and some flooding" that made "the nonnal route ... unpassable" (R. 56). At the same time that Kelly finally made it to the scene, another officer, Officer Atchinson, anived (seeR. 57). Kelly saw that a tree had taken out "half of 4 the roof, the rear wall, and the side wall, which was collapsed on top of the victims. Rain was polll'ing into the structlli'e. There were wires down" (R. 57). Upon inspection, the house "appeared to be very unstable" (R. 79). However, Kelly saw that the debris had stopped "falling" and entry was possible (R. 80). Kelly "called for the fire department, which ... has the technical response unit" and "for EMS, additional ambulances" (R. 57). The technical response unit was "two-hours delayed based on where they were coming from and the road conditions and the severity of the weather" (R. 51). Kelly also requested "additional ... police personnel" (R. 57). The other officers, who were "on the other side of town, were told to stand down and not respond" in case other "emergencies occurred" (R. 57). Consequently, "for the foreseeable future, it was just [Kelly] and Officer Atchinson" who could rescue the three people trapped in the house (R. 58). Kelly "entered the building" and "heard screams ... for help" (R. 69). He saw that one resident "had been impaled" and was already dead (R. 71 ). The other three residents were trapped "underneath" a pile of"debris" on the "second floor" of the house (R. 70). Kelly and Officer Atchinson went to the second floor to try to save the remaining residents. Kelly climbed "on top of the pile and started throwing debris" (R. 69-70). He "felt a pain in [his] shoulder at that point" but continued 5 "throwing some plywood out" to try to dig out the trapped woman and children (R. 72). Kelly "felt [he] had to keep on going to try to get these people, so [he] just ignored [his] pain and kept on going" (R. 80). Officer Atchinson was nearby "trying to dig around the couch and trying to get the daughter" trapped behind (R. 72). In that area of the house "the rafters ... were dangling from thepmiion of the roof [that] was still" standing (R. 72). Suddenly, "stuff started to shift and stuff statied falling down' from the roof (R. 72). Kelly "reached up with [his] right arm to brace one of the rafters, and ... felt pain in [his] shoulder and ... neck" (R. 72). Kelly made "a split second" decision to brace the falling rafter (R. 83). He "heard like a rumble," saw that "stuff was falling down" and "just reached up and grabbed it instantly" (R. 83). If Kelly had not blocked the falling rafter, "[m]ore . construction debris would have cetiainly landed on Officer Atchinson and continued to top on top of the victims that were already pinned underneath the tree" (R. 73). Officers Kelly and Atchinson were able to rescue two of the three individuals trapped in the collapsing house (seeR. 73). The fire department arrived "at least 20 minutes to a half-hour" after Kelly and Atchinson got to the house (R. 75). After Kelly exited to treat his injury, the fire depatiment rescued the third occupant (seeR. 75). 6 Kelly was unable to return to work following his neck and shoulder injury (seeR. 103-1 05). Thereafter, Kelly applied for ADR upon the grounds that he suffered from a permanent disability due to an accident on October 29, 2012 that was in the course of his performance of duty (seeR. 100-101). The Retirement System initially denied the application upon the grounds that the events of October 29, 2012 did not "constitute an 'accident'" under Retirement and Social Security Law§ 363 (R. 102). Kelly timely sought a hearing and redetermination of his ADR application pursuant to Retirement and Social Security Law§ 374 (seeR. 46). Kelly was the sole testifying witness at the hearing (seeR. 83). One topic of significant questioning was the scope of Kelly's duties (seeR. 77-78). The department's applicable general order states: "8. When assigned a call in their area, Officers will immediately respond to the location of the call in accordance to Departmental procedures. The Officer shall: a. Assist any injured persons and request necessaty medical assistance (I.E. Paramedics, ambulance). b. If it is a crime scene or a potential crime scene, the Officer will protect and preserve the scene. (See GO 710 Crime Scenes)" (R. 108). Kelly testified that the depatiment's normal procedure for patrol officers such as himself was to "call for the trained personnel, which would be the fire 7 department, the technical rescue ... unit" (R. 75). The police officers such as Kelly would then "maintain the perimeter outside" to prevent anyone from going "into the structure as its unsafe" or "[b ]lock traffic from any incoming cars" (R. 76). As Kelly explained, "[o]fficer safety [wa]s paramount" for the department (R. 67). He was trained to first ensure his own safety, and that the safety "of [his] partner [wa]s taken into consideration" (R. 66). Kelly was trained to then "assess the scene" because "[i]f [an officer] were to get hurt doing something without assessing the scene, [he or she would be] putting other first responders at risk" (R. 66-67). Kelly "wasn't trained" to enter partially collapsed buildings and rescue trapped individuals (R. 81 ). In this particular situation, however, he felthe "had no· choice" but to undertake rescue efforts himself (R. 76). Kelly testified that he "had to go in and help these people or they would have died" (R. 76). He explained that there was "[ a]bsolutely" no time to wait 20 minutes for the fire department to an-ive because "the structure was unstable" and the storm was ongoing (R. 73). However, he "would not have been disciplined if [he] did not go in" (R. 81 ). The hearing officer recommended that Kelly's application for ADR be granted (seeR. 36-42). The hearing officer reasoned: "Here, [Kelly] testified as to his actual duties as a police officer under normal circumstances, ' ... my function will be maintain the perimeter 8 outside. Make sure no one goes in into the stmcture as it's unsafe. Call for a supervisor, call for an ambulance, call for the fire department, 0 and R, if, you know, the water-- I'm son·y. The electric or the gases might be compromised. Block traffic fi·om any incoming cars coming in.' He was never trained nor, presumably, expected to enter an unstable building without the presence of trained professionals. Indeed, he was taught not to do so. Officer safety is paramount. This is perfectly sensible because if the officer is injured he might well be unable to assist others. Entering that unstable stmcture was not within [Kelly]'s regular and usual duties .... For the foregoing reasons it is respectfully submitted that the injury causing incident be deemed to be an accident" (R. 41-42). The Deputy Comptroller ovenuled the hearing officer's decision and denied Kelly's ADR application (seeR. 33-34). The Deputy Comptroller concluded: "1. Responding to emergencies is among the ordinary duties of police officers. 2. If applicant's response on October 29, 2012 was therefore an ordinary part ofthe duties of his employment, any resulting injury is notaccident1:tl under the RSSL. 3. If applicant's response was not an ordinary pmt of the duties of his employment, taking his testimony at face value, any injury resulted fi·om 'voluntarily attempting a task routinely performed by other officers,' and therefore was not 'accidental.' 4. Although this rule has sometimes been tempered when the voluntary action is precipitated by an emergency, even if applicant's particular version of police training excluded unstable buildings, emergency responses generally fall within the scope of police officer duties, and in the context of that particulm· type of employment, should not justify an exception to the voluntary action rule. 5. Applicant has failed to meet his burden of proof that his injury resulted from an accident sustained in service" (R. 34 [citations omitted]). 9 Thereafter, Kelly timely petitioned Supreme Court, pursuant to CPLR article 78, for an order setting aside the Comptroller's determination and granting Kelly's application for ADR benefits (seeR. 29). The matter was transferred to the Appellate Division (seeR. 13). The Appellate Division, Third Department, with two Justices dissenting, affirmed the determination (seeR. 3-8 [137 AD3d 1470 (3d Dept 2016)]). The majority reasoned that "[f]or the purposes of Retirement and Social Security Law§ 363, an injury that results fi·om 'a risk of the work performed' is not an accident" and that there was "substantial evidence that [Kelly]' s injury resulted from foreseeable risks inherent to being a police officer whose duty it was to assist injured persons" (137 AD3d at 1470-1471 [citations omitted]). The majority explained that "[Kelly] was considered a first responder to emergency calls and had a duty to assist injured persons. The Uniform Police Officer Job Description that governed [Kelly] 's job confirmed [his] testimony to the extent that it dictated that his professional responsibilities included '[a]ssist[ing] injured persons.' [Kelly] aclmowledged that, due to the hurricane, his supervisors had impressed upon him that his professional duty extended to responding to emergency calls involving life and limb. [Kelly] explained that he answered a call regarding occupants of the house who were trapped due to a tree falling onto and through the home. [Kelly] aclmowledged that, when he arrived, the home was not a stable structure and debris was still falling, but he explained that he had to go in to help the trapped occupants. [Kelly] was thereafter injured while throwing debris off of the trapped occupants and while holding up debris that continued to fall during that rescue effort. Accordingly, a reasonable conclusion to draw from the record is that the threat that compelled [Kelly]'s 10 response as a police officer and first responder-the dangerous condition in the home-was the same threat that ultimately caused [his] injuries" (id. at 1471-1472 [footnote omitted]). Justices GatTy and Lynch dissented in a writing by Justice Garry, and would have voted to affirm (see id. at 1472-1474). The dissenting justices concluded that, "there [wa]s simply nothing in the underlying circumstances that may be considered routine or orqinary, even for a police officer" (id. at 1473). The dissenting justices would have held "that [the Comptroller]'s determination to the effect that [Kelly]' s injury resulted fi·om 'voluntary attempting a task routinely performed by other officers' was unsuppmted by substantial evidence" (id. [citations omitted]). The dissenting Justices agreed that Kelly's "general job duties necessarily· included assisting injured persons" (id. at 14 72). "However," the dissenting Justices explained, "it was not his personal duty to directly provide aid in every circumstance" (id.). Moreover, Kelly "lacked any training to carry out ... rescues" such as the one in this case and was, moreover, "specifically instructed not to do so" (id.). Instead, his duty was to "provide the safest possible conditions to allow people possessing the appropriate skills and training to cany out the rescue" (id. at 1473). The dissenting Justices reasoned that, in this case, 11 "[Kelly] was unable to comply with the established protocol due to the unusually severe storm in progress. Upon calling for assistance, [Kelly] learned that the fire department would be substantially delayed, the technical rescue team was two hours away, and other police officers were unable to report. There were but two rescuers available-[Kelly] and his partner. Therefore, despite their lack of training and the instability of the structure, they entered the house and attempted the rescue. [Kelly] felt an injury in his shoulder as he threw debris off the trapped and injured residents, but continued to work. Shortly thereafter, an overhead rafter began to fall toward [Kelly]'s partner and the residents. Grabbing it, petitioner immediately felt additional pain in his shoulder and neck. This injury thus resulted directly from the instability of the structure; but for the intense urgency, it may have been possible to shore up the structure and decrease the risk of injury to the rescuers. These unusual facts reveal the wholly unexpected nature of the event, in which "time was of the essence" and [Kelly] was confronted with the immediate need to gain access to an unstable structure despite his lack of appropriate training, and place the occunence well outside the ordinary expectations and anticipated demands of [Kelly]'s job duties" (id. [citation omitted]). Kelly timely appealed as of right pursuant to CPLR 5601 (a) (seeR. 1 ). LEGAL STANDARDS Under Section 363 (a) of the Retirement and Social Security Law, a member of the police and fire retirement system such as Kelly "shall be entitled to an accidental disability retirement allowance if, at the time the application is filed, he [or she] is" (1) "[p ]hysically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by his [or her] own willful negligence sustained in such service and while actually a member of the 12 policemen's and firemen's retirement system" and (2) was within service for any potiion cifthe preceding two years. This Court has "defined an accident as a 'sudden, fmtuitous mischance, unexpected, out of the ordinary, and injurious in impact"' (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008] [citation omitted]). "According to this definition, an injury which occurs without an unexpected event as the result of activity undetiaken in the performance of ordinary employment duties, considered in view of the patiicular employment in question, is not an accidental injury" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City ofN.Y., Art. II, 57 NY2d 1010, 1012 [1982]). The applicant bem·s the burden of establishing that the injury was the result of an accident (see Matter of McCambridge v McGuire, 62 NY2d 563, 567 [1984]). The Comptrollet·'s determination that an injury was not the result of an accident may be reversed if not "supported by substantial evidence in the record" (Matter of Kenny, 11 NY3d at 875). It is settled that "[s]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof of a premise, a conclusion or ultimate fact may be extracted reasonably- probatively and logically" (Matter of Yoga Vida NYC, Inc [Commissioner of 13 Labor], 28 NY3d 1013, 1015 [2016]). If the "record as a whole" does not support the administrative determination, it may be reversed (id.). For the reasons that follow, the Comptroller's detetmination lacks suppmi in the record and the judgment of the Appellate Division should be reversed. ARGUMENT POINT I THE RECORD EVIDENCE COMPELS THE CONCLUSION THAT KELLY'S INJURY, SUSTAINED AFTER BLOCKING A RAFTER FROM FALLING ONTO A FELLOW OFFICER, WAS ACCIDENTAL The Appellate Division majority held that "a reasonable conclusion to draw from the record is that the threat that compelled [Kelly]'s response as a police officer and first responder-the dangerous condition of the home-was the same threat that ultimately caused his injuries" (137 AD3d at 1471-1472). The majority further concluded that the rafter falling onto Kelly's partner was one of the "foreseeable risks inherent to being a police officer whose duty it was to assist injured persons" (id. at 1472). These conclusions do not have support in the record. This Court has explained that "a precipitating accidental event" such as "the loss of balance and a fall to the floor" in an office or a "slip on the wet pavement" while entering a patrol car are "not a risk of the work performed" (Matter of McCambridge, 62 NY2d at 568). Similarly, a firefighter "[c]atching a heel on a 14 mnning board and thus losing balance" when "exiting a fire truck" would implicate "a risk ofthe work performed, but coming down hard on the other foot in a pothole is not" (Matter ofPratt v Regan, 68 NY2d 746, 747 [1986]; see also Matter of Murphy v New York State Comptroller, 92 AD3d 1022, 1023 [3d Dept 2012] [slip and fall on ice was accidental]). "To be distinguished," this Court explained, "are injuries sustained while performing routine duties but not resulting from unexpected events, e.g., back strains sustained while putting a tire in the trunk of a city vehicle, while leaning over to place a ticket on a car, while lifting trash cans, or a loss of hearing sustained as a result of practice sessions on the pistol range" (id. [citations omitted]). Consistent with these principles, when an officer falls down the stairs due to his or her "own misstep," the injury is "is not so out-of-the- ordinary or unexpected as to constitute an accidental injury as a matter 9flaw" (Matter of Starnella v Bratton, 92 NY2d 836, 839 [1998]). Prior to this case, the Appellate Division had consistently held that injuries sustained on duty stemming from an attempt to protect a colleague from a falling object or hazard similar were accidental in nature. These holdings were consistent with this Court's jurisprudence inasmuch as an object falling towards someone else is more in the nature of an extraordinary or unexpected condition, rather than a typical event or one anticipated part of the individual's duties. For example, in Matter of Scibilia v Regan (183 AD3d 1096 [3d Dept 1992], 15 lv denied 80 NY2d 759 [1992]), a municipal employee was injured when he "held up" a 650 pound "voting machine in order to keep it from falling" after he "observed that the machine was about to tip over" on subordinates who had lifted a corner of the machine to repair it (id. at 1097). The comi explained that, even though tipping is presumably a risk any time a large machine is tilted, that the machine actually fell towards the workers was, in that case, "sudden and unexpected" (id.). Similarly, in Matter ofLeunberger v McCall (235 AD2d 906 [3d Dept 1997]), a nurse was injured when she held a 200 pound falling van door in place in response to a distressed call from a supervisor (id. at 907). Although loading patients into the van was "a duty she performed routinely," and the hinges of the van door were "rusted," that the van door fell at that moment "was unusual, unexpected and not a risk inherent in the ordinary performance of [the nurse]'s regular duties" (id.). Finally, in Matter of Cantone v McCall (289 AD2d 863 [3d Dept 2001]), a municipal water treatment plant operator was injured when he tripped while stepping over construction materials to access a manual shut-offvalve in order to prevent "poisonous chlorine gas" from escaping into the facility (id. at 863). The court noted that the operator "had not previously experienced the problem" and there was nothing in the record indicating "that the problem was routine" (id. at 16 864). The common thread connecting Scibilia, Lennberger, and Cantone is that an emergency arose and the employee was injured responding to an "emergency" situation (id. at 863). This case is ultimately no different, even though as a "first responder" Kelly was the first uniformed officer to anive at a location where civilians required assistance. At bottom, falling debris was not a risk Kelly faced in the ordinary performance of his duties in responding to call at a building. Kelly testified that his duties were to (1) assess the situation, (2) request any needed response unit, and then (3) establish a secure perimeter around the building nntil and after the response nnit arrived and fmished the rescue. Here, due to delays from a massive storm that is not usual or expected in Pearl River, Kelly was told that the technical · response unit would not arrive for two hours. Such a storm was unprecedented, according to the only testimony in the record. The trapped residents in the house did not have that long to wait. Kelly had no training or experience with this type of situation. He did what he had to do to save others and was injured in the process. Consequently, the events of October 29 were unforeseen and Kelly's injuries, which flowed from entering the residence to rescue the occupants, were the result of an accident. 17 Moreover, the rafter falling onto Kelly's colleague was particularly unexpected and unanticipated under the unique facts of this case. Kelly testified that he surveyed the premises before entering. The uncontroverted testimony is that debris had stopped falling before Kelly and his fellow officer went in to attempt to rescue the occupants. Kelly's duties, even under the general order, pertained to civilian protection and not preventing objects from falling on fellow officers during an emergency rescue. The falling rafter in this case could no more be expected than was the falling machine in Matter of Scibilia, the falling rusty door in Matter ofLeunberger, or the chemical gas leak in Matter of Cantone. Kelly's reaction to save his colleague from potentially severe hmm was a response to an accident. Accordingly, the decision of the Appellate Division should be reversed for the reasons stated in the dissent. POINT II THE APPELLATE DIVISON DECISION PRODUCES THE ABSURD RESULT THAT POLICE OFFICERS DISABLED WHILE HEROICALLY PROTECTING THE PUBLIC WILL ALWAYS RECEIVE LESS COMPENSATION THAN THOSE INJURED WHILE STROLLING DOWN A SIDEWALK The Appellate Division and the Comptroller erred in reading too broadly the duties of a police officer. This Court's definition ofthe te1m "accident" in Retirement & Social Security Law § 363 cannot mean that officers may be accidentally injured when they slip on wet pavement next to a patrol car or when 18 getting out of a desk chair, but not when they act to stop a rafter from falling on a colleague. The decisions relied upon by the Appellate Division majority generally involved non-emergency situations of a type that the petitioner had encountered before (see Matter ofSchoales v DiNapoli, 132 AD3d 1184, 1185-1186 [3d Dept 2015] [slipping on ice during an inspection and lifting a morbidly obese woman, which the petitioner had done before]; Matter of Lanzetta v DiNapoli, 130 AD3d 1109, 1110 [3d Dept 2015] [injured while assisting an emergency medical technician loading a patient, which the petitioner testified "was a routine employment duty"]; Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [3d Dept 2015] [fall on ice during an investigation]; Matter of Dicioccio v DiNapoli, 124 AD3d 1170, 1170-1171 [3dDept 2015] [slip on ice during investigation and injury during training class];). The limited emergency situations presented in the cases cited by the majority either involved an officer injuring himself or herself while apprehending a suspect as patt of his or her ordinmy duties (see Matter of Carpenter v DiNapoli, 104 AD3d 1037, 1038 [3d Dept 2013] [officer injured while apprehending a suspect who was known to him]; Matter of Sansone v Levitt, 67 AD2d 1044, 1044-1045 [3d Dept 1979] [hemt attack after chasing suspects following a large meal]) or tripping over an object or substance the officer knew or should have known would be underfoot based upon the officer's actions and prior 19 experience in similar situations (see Matter of Scofield, 125 AD3d at 1086-1087 [officer tripped over a telephone pole he had just crashed into during a chase]; Matter of Bennett v DiNapoli, 119 AD3d 1310, 1310 [3d Dept 2014] [officer slipped on a liquid on roadway chasing suspect following vehicle crash; officer and his partner testified that they knew slippery substances could be on the roadway following a crash]; Matter ofFranksv New York State & Local RetirementSys., 47 AD3d 1115, 1115-1116 [3d Dept 2008] [officer stepped into an areas of pavement and curbing he knew was damaged). Contrary to what the Appellate Division majority suggested in this case, incidents involving first responders can constitute accidents. In Matter of Sica v DiNapoli (141 AD3d 799 [3d Dept 2016], appeal dismissed 28 NY3d 1112 [20 16]), a firefighter exposed to poisonous gas while responding to an emergency call was ultimately held to be injured as a result of an accident (id. at 801 ). As the Appellate Division majority explained in Sica: "In reversing the Hearing Officer's determination, [the Comptroller] 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. . . . 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, fmiuitous ... , unexpected [and] out of the ordinary' that it qualifies 20 as an accident within the meaning of the Retirement and Social Security Law remains a factual issue that should not be dete1mined merely be reference to job descriptions. 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 these workers" (id. [emphasis added, intemal citation omitted]). In sum, not every injury to a police officer responding to an emergency call should be held to be ordinary and expected. In light of (1) Kelly's lack of training in how to rescue individuals from collapsing buildings and (2) the substantial and necessary difference in Kelly's response on the night in question when compared to depmiment protocol for rescue operations- where he siinply established a secure perimeter:- this case presents a situation where Kelly's injuries while pulling debris off of a trapped person and blocking a rafter from falling onto his pminer were unexpected. POINT III THE HEARING OFFICER'S DETERMINATION DID NOT RECEIVE THE PROPER WEIGHT It is well-established that, although "[a]n administrative official may overrule a [h]earing [o]fficer's findings, ... the [o]fficer's findings are entitled to considerable weight and are significant in determining whether substantial evidence exists to support" the administrative official's determination (Matter of 21 Millerv Axelrod, 147 AD2d969, 969 [4th Dept 1989]). This Comthas explained that, while not "conclusive,'' the rep01i of a hearing officer "is entitled to weight, at times variously stated to be 'much', 'considerable' or the 'greatest', in determining the existence of substantial evidence, particularly to the extent that material facts in a given case may depend on resolving the credibility of witnesses as shown by their demeanor or conduct at the hearing" (Matter of Simpson v Wolansky, 38 NY2d 391, 394 [1975]). In this case, the conclusory nature ofthe Comptroller's determination, when contrasted with the detailed hearing officer's report, strongly indicates a lack of substantial evidence to overrule the hearing officer's recommendation that Kelly receive ADR. The Comptroller improperly accorded credibility to his own subjective reading ofthe general order regarding Kelly's duties, rather than properly leaving alone the hearing officer's resolution of this issue of credibility in favor of Kelly. 22 CONCLUSION For the foregoing reasons, it is respectfully submitted that the Memorandum and Judgment of the Appellate Division should be reversed, Kelly's petition granted with costs, the Comptroller's detennination be annulled, an order be entered adjudging and declaring Kelly entitled to ADR benefits, and Kelly granted such other and further relief as deemed just and proper. Dated: Albany, New York March 17,2017 Respectfully submitted, HINMAN STRAUB P.C. _,, .-·>? Appellate Counsel to Petitioner- · ppellant 121 State Street Albany, NY 12207 (518) 436-0751 23 CERTIFICATE OF COMPLIANCE WITH 22 NYCRR 500.13 (C) This document complies with the word limit of Rules of Court of Appeals (22 NYCRR) § 500.13 (c) (1) because, excluding parts ofthe document exempted by Rule 500.13 (c) (3), the document contains 5,242 words. Dated: Albany, New York March 17, 2017 Respectfully submitted, Appellate Counsel to Pef 'oner-Appellant 121 State Street Albany, NY 12207 (518) 436-0751 24