In the Matter of James J. Kelly, Appellant,v.Thomas P. DiNapoli,, Respondent.BriefN.Y.January 2, 2018APL-2016-00083 To be argued by: William E. Storrs Time requested: 15 minutes App. Div Third Dept. No. 521498 No.5676-14 ~tate of ~etu ~ork (!Court of ~ppeals IN THE MATTER OF J Al\IES J. KELLY, Petitioner-Appellant, ~against- THOMAS P. DINAPOLI, AS STATE COMPTROLLER, Respondent-Respondent BRIEF FOR RESPONDENT-RESPONDENT BARBARl\ D. UNDERWOOD Solicitor General ANDREA D. 0SER Deputy Solicitor General PETER H. SCHJFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General ol the State ol New York Attorney for Respondent- Respondent The Capitol i\lbany, New York 1224 Telephone: (518) 776-2037 Dated: 1\tlay 1, 2017 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 QUESTION PRESENTED ........................................................................ 1 STATUTORY BACKGROUND ................................................................. 2 STATEMENT OF THE CASE ................................................................... 5 A. The Initial Determination and the Hearing ........................... 5 B. The Comptroller's Final Determination ................................. 8 C. The Decision Below ............................................................... 10 ARGUMENT BECAUSE PETITIONER'S EXERTION INJURIES RESULTED FROM A FORESEEABLE RISK INHERENT IN HIS DUTIES As A POLICE OFFICER, THEY WERE NOT THE RESULT OF AN "ACCIDENT" ............. 12 CONCLUSION ........................................................................................ 27 1 TABLE OF AUTHORITIES CASES PAGE Cantone, Matter of v. McCall, 289 A.D.2d 863 (3d Dep't 2001) ...................................................... 17 Cohen, Matter of v. Levitt, 36 A.D.2d 992 (3d Dep't), lv. denied, 29 N.Y.2d 486 (1971) ............................................... 20-21 Demma, Matter of v. Levitt, 11 N.Y.2d 735 (1962) ...................................................................... 21 Fiducia, Matter of v. DiNapoli, 111 A.D.3d 1018 (3d Dep't 2013) .................................................... 16 Flynn, Matter of v. Hevesi, 308 A.D.2d 67 4 (3d Dep't), lv. denied, 1 N.Y.3d 504 (2003) ................... : .................................. 19 Kazmierczak, Matter of v. McCall, 252 A.D.2d 728 (3d Dep't), lv. denied, 92 N.Y.2d 813 (1998) .................................................... 19 Keller, Matter of v. Regan, 212 A.D.2d 856 (3d Dep't 1995) ...................................................... 13 Kelly, Matter of v. DiNapoli, 137 A.D.3d 14 70 (3d Dep't March 24, 2016) ....................... 10, 11, 12 Lanzetta, Matter of v. DiNapoli, 130 A.D.3d 1109 (3d Dep't 2015) .................................................... 20 Lenci, Matter of v. DiNapoli, 92 A.D.3d 1078 (3d Dep't 2012) ...................................................... 16 .. 11 TABLE OF AUTHORITIES (cont'd) CASES (cont'd) Leunberger, Matter of v. McCall, PAGE 235 A.D.2d 906 (3d Dep't 1997) ................................................ 17, 18 Lichtenstein, Matter of v. Board of Trustees, 57 N.Y.2d 1010 (1982) ................................................................ 3, 13 McCambridge, Matter of v. McGuire, 62 N.Y.2d 563 (1984) ...................................................................... 14 Menna, Matter of v. New York City Employees' Retirement System, 59 N.Y.2d 696 (1983) ...................................................................... 14 O'Brien, Matter of v. DiNapoli, 116 A.D.3d 1124 (3d Dep't), lv. granted, 23 N.Y.3d 908 (2014), appeal dismissed, 25 N.Y.3d 948 (2015) ................................................ 23n Pratt, Matter of v. Regan, 68 N.Y.2d 7 46 (1986) ................................................................................ 25 Sammon, Matter of v. DiNapoli, 97 A.D.3d 952 (3d Dep't 2012) ................................................................. 25 Schussler, Matter of v. Codd, 59 N.Y.2d 698 (1983) ...................................................................... 14 Scibilia, Matter of v. Regan, 183 A.D.2d 1096 (3d Dep't 1992) .............................................. 17, 18 Sica v. DiNapoli, 141 A.D.3d 799 (3d Dep't), appeal dismissed, 28 N.Y.3d 1112 (2016) ................................... 12n Ill TABLE OF AUTHORITIES (cont'd) CASES (cont'd) Sikoryak, Matter of v. DiNapoli, PAGE 104 A.D.3d 1042 (3d Dep't 2013) .................................................... 17 Starnella, Matter of v. Bratton, 92 N.Y.2d 836 (1998) ................................................................ 14, 18 Valentin, Matter of v. Board of Trustees, 59 N.Y.2d 702 (1983) ...................................................................... 14 STATE STATUTES C.P.L.R. article 78 ......................................................................................... 10 § 5601(a) .......................................................................................... 12 § 5601(c) ....................................................................................... 12n R.S.S.L. § 362(a) .............................................................................................. 2 § 362(b)(1) ...................................................................................... 3n § 362(b)(2) ......................................................................................... 3 § 363 ....................................................................................... passim § 363(a) .............................................................................................. 3 §363(a)(l) ........................................................................................ 13 § 363(e)(3) ......................................................................................... 3 § 363(g)(l) ....................................................................................... 23 § 363(g)(2) ....................................................................... ···············. 23 § 363-c(a) ........................................................................................ 4n § 363-c(b)(1) ....................................................................................... 4 § 363-c(f) ............................................................................................ 5 § 363-c(i) ............................................................................................ 5 § 364(a) .............................................................................................. 4 § 370 ................................................ ~ ................................................ 3 § 444(a) ..................................................................................... 3n, 4n lV TABLE OF AUTHORITIES (cont'd) PAGE STATE STATUTES (cont'd) State Administrative Procedure Act § 306(1) ............................................................................................ 13 1984 N.Y. Laws ch. 661 .......................................................................... 4n 1984 N.Y. Laws ch. 661, Bill Jacket at 11 ......................................... .4, 22 1984 N.Y. Laws ch. 661, Bill Jacket at 21 ................................................ 5 1998 N.Y. Laws ch. 489 ........................................................................... 22 1998 N.Y. Laws ch. 489, Bill Jacket at 3 ............................................... 4n 2004 N.Y. Laws chs. 93, § 2, 104, pt. A, § 2 ............................................ 23 2014 N.Y. Laws ch. 503 ........................................................................ 24n v PRELIMINARY STATEMENT At issue in this appeal is a determination by respondent Comptroller DiNapoli denying the application of petitioner James J. Kelly for accidental disability retirement benefits. The effect of the determination is to relegate petitioner to performance of duty disability benefits, which are not always as financially favorable. In confirming the determination, the Appellate Division, Third Department, found substantial evidence supporting respondent's determination that petitioner's InJuries resulted from foreseeable risks inherent in petitioner's work as a police officer, as opposed to an unforeseeable precipitating event that was not an inherent risk of the job. This .Court should affirm. QUESTION PRESENTED Under New York Retirement & Social Security Law § 363, a member is eligible to receive accidental disability retirement benefits if permanently incapacitated from performing his or her job duties as the result of an accident sustained in service. The question presented is whether substantial evidence supports respondent's determination that petitioner's injuries were not accidental, within the meaning of this statute, because they resulted from foreseeable risks inherent in his work as a police officer, as opposed to an unforeseeable precipitating event that was not an inherent risk of the job. STATUTORY BACKGROUND There are three kinds of permanent disability retirement benefits potentially available to police officers such as petitioner: (1) ordinary disability retirement benefits, (2) accidental disability retirement benefits, and (3) performance of duty disability retirement benefits. Ordinary disability retirement benefits are the easiest disability retirement benefits to obtain. They are payable to members of the New York State Police and Fire Retirement System (the "Retirement System") with at least ten years of service who become permanently incapacitated. See Retirement & Social Security Law ("R.S.S.L.") § 362(a). A member need not have been disabled in the performance of duty, and the cause of the disability is not a factor in determining eligibility. The amount of ordinary disability retirement benefits payable to a member depends on the member's salary and length of service. Nonetheless, such benefits are generally no less than a third of the member's final average salary, and they can be as favorable as a service retirement benefit. 2 See R.S.S.L. § 362(b)(2); see also R.S.S.L. § 370 (addressing service retirement benefits for members who retire after reaching the minimum retirement age).l The most difficult kind of disability retirement benefits to obtain- and sometimes the most financially favorable-are accidental disability retirement benefits. Accidental disability retirement benefits are available only to members injured as the result of an "accident" sustained in the performance of duty, within the meaning of R.S.S.L. § 363(a). As this Court has explained, to obtain accidental benefits, a Retirement System member must establish that an injury resulted from a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 (1982). Members who can satisfy this stringent requirement receive on an annual basis 75% of their final average salary, see R.S.S.L § 363(e)(3), although the benefit is reduced by any benefit payable by reason of such 1 When a Tier 2 member such as petitioner reaches the age of 60, the maximum ordinary disability retirement benefit is capped at the amount of the service retirement benefit, which would be a maximum of 64% of final average salary. R.S.S.L. §§ 362(b)(l), 444(a). 3 disability or death under the Workers' Compensation Law, see R.S.S.L. § 364(a). In 1984, the Legislature established performance of duty disability retirement benefits for members who are disabled in the performance of their duties, but not as a result of an accident.2 See R.S.S.L. § 363-c(b)(1). The Legislature created performance of duty disability retirement benefits precisely because of the "very stringent precedent'' that made accidental disability retirement benefits so difficult to obtain. See 1984 N.Y. Laws ch. 661, Bill Jacket at 11 (March 1, 1984 Memorandum ofNew York State Employees Retirement System). Indeed, the exclusion of "exertional injuries" from the ambit of accidental disability retirement benefits was observed to have "often worked an injustice," which the creation of performance of duty disability retirement benefits was 2 With the enactment of performance of duty disability retirement benefits, the Legislature initially eliminated accidental disability retirement benefits for members hired after January 1, 1985. 1984 N.Y. Laws ch. 661 (amending R.S.S.L. § 363-c[a]). But the Legislature restored those benefits in 1998, stating that the restoration was intended to address the "inequity" caused by the absence of such benefits for the more recently hired members. See 1998 N.Y. Laws ch. 489 (amending R.S.S.L. § 444[a]); Bill Jacket at 3 (June 24, 1998 Letter of Senator Trunzo). 4 intended to address. See 1984 N.Y. Laws ch. 661, Bill Jacket at 21 (July 16, 1984 Memorandum of New York State Department of State). Performance of duty disability retirement benefits generally constitute 50% of final average salary. See R.S.S.L. § 363-c(f). Unlike accidental disability retirement benefits, however, they are not reduced by any benefit payable under the Workers' Compensation Law. See R.S.S.L. § 363-c(i). STATEMENT OF THE CASE A. The Initial Determination and the Hearing Petitioner was a police officer with the Town of Orangetown Police Department. He applied for accidental disability retirement benefits under R.S.S.L. § 363, alleging that he was permanently incapacitated as the result of injuries suffered in an accident that occurred on October 29, 2012 (209-210). 3 Respondent's Director of Disability Services denied petitioner's application, finding that the incident did not constitute an "accident" within the meaning of R.S.S.L. § 363 (211). Petitioner timely requested a hearing and redetermination (156). 3 Citations are to pages in the Record on Appeal. 5 At the hearing, petitioner testified that, as a police officer, he was considered to be a first responder and that his job duties included assisting and rescuing injured persons (187 -188). His official written job description specifically provided that he was required to "immediately respond" to any call in his assigned area and "[a]ssist any injured persons" (217). On October 29, 2012, petitioner was working the 4:00 p.m. to Midnight shift assigned to a one-man police car (163). Hurricane Sandy was in full progress that evening, with heavy rains, flooding, and high winds (163-164). Shortly after petitioner's shift began, many of the town's roads became blocked by fallen trees, poles and wires (165). Police officers in the department were instructed to take cover and to respond only to necessary calls, not non-life-threatening situations, until the weather improved (165). Between 6:00 and 7:00 p.m., petitioner received a call that a tree had fallen through a house, trapping its occupants inside (165-167). He responded, as did Officer Atchinson (167). The tree had taken out half of the roof, the rear wall and a side wall, all of which had collapsed on top of the occupants, and rain was pouring in (167). Petitioner called for the 6 fire department (which has a technical response unit), EMS, additional ambulances and additional police officers (167). Due to the risk of too many officers being trapped in one part of town, law enforcement from the other side of town were directed not to respond (16 7 -168). Petitioner testified that normal police department protocol in these circumstances would have been to call for the fire department and its technical rescue team to perform the actual rescue, and for the police officers to maintain the perimeter and prevent others from entering the unsafe structure (185-186). On this occasion, however, and despite his lack of training in rescuing people from unstable buildings, petitioner testified that he had "no choice" but to try to rescue the people trapped inside; otherwise they would have died (181, 186, 188-189, 191). Petitioner explained that he knew the fire department would be delayed in responding, and thus that he understood that, under the circumstances, responsibility for the response rested with Officer Atchinson and him (167-168, 188-189). Petitioner walked around the back of the house, observed that the walls had collapsed and that the structure appeared to be "very unstable" (189). When he entered the building, he heard screams for help (1 79). He 7 saw what appeared to be the roof and the two walls on top of the tree and the other half of the roof dangling unsafely overhead (190). He climbed to the top of the pile of debris and began the process of throwing debris out the back of the building to rescue the people trapped underneath (182, 190). As he threw the first or second piece of plywood, he felt a pain in his shoulder, but he kept going (182, 190). Meanwhile, Officer Atchinson was working inside the house underneath the fallen tree, trying to free one of the inhabitants (182). As Officer Atchinson moved furniture and debris, other parts of the house started to shift and fall. Petitioner testified that he "instantly" reached up with his right arm to brace a shifting rafter and felt pain in his shoulder and his neck (182, 193). The two officers were able to rescue two occupants of the house, the daughters, before the fire department arrived. The father of the family had perished before the officers' arrival, and the fire department was able to rescue the mother (179, 185, 192). B. The Comptroller's Final Determination Although the hearing ot1icer believed that petitioner's injuries were incurred in an "accident," within the meaning ofR.S.S.L. § 363 (152-153), the Comptroller determined otherwise and denied petitioner's 8 application for accidental disability retirement benefits (145-146). We are advised that petitioner's application for performance of duty retirement benefits was granted, and that he is currently receiving those benefits. In denying petitioner's application for accidental disability retirement benefits, the Comptroller reasoned that one of petitioner's ordinary job duties was to respond to emergencies (146). Petitioner's written job duties stated as much (145). And while petitioner had been instructed on the night in question to take cover and not to respond to non-urgent calls, he was nonetheless required to respond to emergencies (145). As a result, when petitioner responded to the emergency on October 29, 2012, he was doing his job, and the injury he suffered as a result of the exertion of removing or holding up debris was not accidental since the incident could have been anticipated (145-146). 4 4 The Comptroller also offered an alternative rationale, namely that, if petitioner's response was not part of his job, then any injury he sustained as a result of "voluntarily attempting a task routinely performed by other officers" was not accidental (146). The Appellate Division did not address this alternative rationale, and we do not rely on it here. 9 C. The Decision Below Petitioner commenced the underlying article 78 proceeding to challenge the Comptroller's determination. Because his petition raised a substantial evidence issue, it was transferred to the Appellate Division, Third Department, which confirmed the determination over a two-judge dissent. See Matter of Kelly v. DiNapoli, 137 A.D.3d 14 70 (3d Dep't March 24, 2016). The Appellate Division majority found substantial evidence in the record to support the Comptroller's determination that petitioner's actions in attempting to assist the occupants of a partially collapsed house fell within his official job duties. The court noted petitioner's own testimony conceding that he was considered a first responder to emergency calls and that he had a duty to assist injured persons. Indeed, petitioner had expressly acknowledged that, despite the obvious instability of the structure, he had a duty to enter it and help the occupants. Moreover, petitioner's testimony was confirmed by the Uniform Police Officer Job Description that governed his duties. While the court recognized that portions of petitioner's testimony suggested a more limited view of petitioner's job duties, it reasoned that the 10 Comptroller was not required to credit those portions of petitioner's testimony over the official written job description contained in the record. 137 A.D.3d at 14 71, n.l. Accordingly, the court held that "a reasonable conclusion to draw from the record is that the threat that compelled petitioner's response as a police officer and first responder-the dangerous condition in the home-was the same threat that caused petitioner's injuries. Given this substantial evidence that petitioner's injury resulted from foreseeable risks inherent to being a police officer whose duty it was to assist injured persons, we will not disturb respondent's determination [cites omitted]." 137 A.D.3d at 14 71-72. The dissenters would have annulled the determination. They reasoned that petitioner's injuries resulted from an extraordinary, urgent and unexpected event-a severe storm in progress-rather than a foreseeable demand of petitioner's job duties, even given the potentially 11 dangerous nature of his work as a police officer. 137 A.D.3d 1472-73.5 In light of the two-justice dissent on a question of law, petitioner had an appeal as of right to this Court. C.P.L.R. § 5601(a). Exercising this right, he timely appealed. ARGUMENT BECAUSE PETITIONER'S EXERTION INJURIES RESULTED FROM A FORESEEABLE RISK INHERENT IN HIS DUTIES As A POLICE OFFICER, THEY WERE NOT THE RESULT OF AN "ACCIDENT" The Appellate Division properly confirmed the Comptroller's determination denying petitioner's application for accidental disability retirement benefits on the ground that petitioner's injuries were not incurred in an "accident" within the meaning of the R.S.S.L. Rather, petitioner's injuries resulted from a foreseeable risk inherent in his 5 The dissenters in this case garnered a majority a few months later in another divided Appellate Division decision similarly examining whether a Retirement System member was entitled to accidental disability retirement benefits. See Sica v. DiNapoli, 141 A.D.3d 799 (3d Dep't), appeal dismissed, 28 N.Y.3d 1112 (2016). This Court dismissed the Comptroller's appeal, taken as of right, for lack of finality. As of this writing, the Comptroller's unopposed motion to leave to appeal under the exception provided in C.P.L.R. 5601(c) remains pending. 12 duties as a police officer to assist the injured occupants of a house severely damaged during Hurricane Sandy. Indeed, as the Appellate Division noted, ample evidence in the record established that petitioner was a first responder to emergency calls whose job it was to assist injured persons, and that the injuries he suffered were a foreseeable consequence of his valiant efforts to perform that duty. Because the determination is in accord with long-standing precedent and the record evidence, this Court should affirm. At the administrative hearing in this matter, petitioner had the burden of proving that he was incapacitated as the natural and proximate result of an "accident," within the meaning of R.S.S.L. § 363(a)(1). See Matter of Keller v. Regan, 212 A.D.2d 856, 857 (3d Dep't 1995). See generally State Administrative Procedure Act § 306(1) (imposing burden of proof on party initiating proceeding to purposes of the R.S.S.L. and analogous retirement benefit statutes, such as the New York City Administrative Code, is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 (1982); 13 see also Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) (reiterating this rule). Further, the Court has expressly stated that there must be "a precipitating accidental event" that was "not a risk of the work performed." Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839 (1998) (quoting Matter of McCambridge, 62 N.Y.2d at 568). In contrast, injuries that result from a foreseeable risk of assigned job duties, and not an intervening unexpected event, are not accidental. See, e.g., Matter of Menna v. New York City Employees' Retirement System, 59 N.Y.2d 696 (1983) (back strain sustained while putting a tire in trunk of city vehicle); Matter of Valentin v. Board of Trustees, 59 N.Y.2d 702 (1983) (same while lifting trash can); Matter of Schussler v. Codd, 59 N.Y.2d 698 (1983) (hearing loss sustained as a result of practice sessions at pistol range). Applying these principles here, substantial evidence supports the Comptroller's determination that petitioner failed to sustain his burden of proving that his injuries were accidental. As the Appellate Division properly reasoned, the Comptroller reasonably found on the record here that petitioner's job duties included responding to emergency calls and assisting injured persons. Petitioner's official written job duties 14 specifically so provided. To be sure, petitioner claimed that under normal protocols, his job would have been to secure the perimeter while other emergency responders performed the rescue. But he nonetheless admitted that, in the absence of other responders, responsibility for the rescue rested with him and Officer Atchinson. And as the Appellate Division properly noted, to the extent portions of petitioner's testimony suggested that his job duties were more limited, the Comptroller could reasonably decline to credit those portions of petitioner's testimony. Moreover, the risk that petitioner confronted in performing that rescue was open and obvious-a tree had taken d