In the Matter of James J. Kelly, Appellant,v.Thomas P. DiNapoli,, Respondent.

Brief

N.Y.January 2, 2018

BARTLETT, MCDONOUGH & MONAGHAN, LLP State of New York Court of Appeals Clerk's Office 20 Eagle Street Albany, NY 12207 May 18,2016 Re: Matter of James J. Kelly v. Thomas P. DiNapoli APL-2016-00083 Index No.: 5676-14 (Albany Co.) Our File No.: 4410-0003 Your Honors: Petitioner-Appellant, James J. Kelly (hereinafter "Petitioner"), respectfully submits this letter brief in further support of his appeal pursuant to Rule 500.11 of this Court. On November 7, 2014, Petitioner filed an Article 78 Petition in order to review and annul the determination made by Respondent to deny his Application for Accidental Disability Retirement on the grounds that the event of October 29, 2012, did not constitute an "accident" as that term is used in Section 363 of the Retirement and Social Security Law ("RSSL"). By an order dated December 5, 2014, Hon. James H. Ferreira, Albany County Supreme Court, transferred this matter to the Appellate Division, Third Department pursuant to CPLR § 7804(g). On March 26, 2016, in a split-decision of three to two, the Appellate Division, Third Department, confirmed Respondent's determination and dismissed the petition. Petitioner appeals to this Court as a right pursuant to CPLR § 5601(a). Petitioner hereby incorporates by reference the entire contents of his Appellant's Brief and Record on Appeal previously submitted to the Appellate Division, Third Department, pursuant to Rule 500.11 (f) of this Court. SUMMARY OF ARGUMENT Petitioner sustained permanent and disabling injuries to his neck and right shoulder while responding to an endangered family inside a collapsing house during Hurricane Sandy. These injuries were sustained as a result of an "accident" as that term is used in RSSL § 363 and outside the ordinary circumstances expected by a police officer. While Petitioner's general job duties included "[a]ssisting any injured persons" [Memorandum and Judgment, majority opinion p. 2], "it was not [Petitioner's] personal duty to directly provide aid in every circumstance." [Memorandum and Judgment, dissenting opinion, p. 4]. The dissenting opinion in the Appellate Division accurately stated "there is simply nothing in the underlying circumstances that may be considered routine or ordinary, even for a police officer" [Memorandum and Judgment, Sl. MAIN STREET I W HITE PLAINS, NEW YORK 10601 I !H4,44S,O:WO OF Fit.~~ SUFFOlK I NASSAU ! NEW YORK CITY I WESTCH ESTER ! ROCKLAND j NEW JERSEY ! FLORIDA BARTLETT, MCDONOUGH & MONAGHAN, LlP dissenting opinion, p. 5]. As such, Respondent's determination is unsupported by substantial evidence and the petition should be granted. Petitioner asserts that Respondent's denial of his Accidental Disability Retirement benefits-which overruled and superseded the findings of facts and conclusions of its own duly appointed hearing officer-was arbitrary and capricious, and not supported by the substantial evidence on the record. On numerous prior occasions, this Court has articulated the standard to receive Accidental Disability Retirement benefits under the RSSL. To receive these benefits Petitioner's injuries must be the result of a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injudous in impact." Matter ofMcCambridge v. McGuire. 62 N.Y. 2d 563 (1984). Further, Petitioner's injuries must result from circumstances that were "unusual, unexpected and not a lisk inherent in the ordinary performance of petitioner regular duties." Matter of Leuenberger v. McCall, 235 A.D. 2d 906, 907 (3d Dept. 1997). The majority opinion in the Appellate Division articulates a standard that any officer harmed while assisting injured persons is not entitled to Accidental Disability Retirement benefits, regardless of all other factors involved in the event. Any such standard nms contrary to prior interpretations of the statute and the overall purpose of these benefits. It does not consider whether the event was truly an "accident" as provided under the RSSL. The judgment of the Appellate Division should be reversed~ the petition should be granted with Respondent' s dete1mination annulled, and Petitioner's application for Accidental Disability Retirement should be granted. FACTS Petitioner, James J. Kelly, was a member of the New York State and Local Retirement System by virtue of his employment as a Police Officer in the Town of Orangetown Police Department, Rockland County, New York. Petitioner sustained injuries during the course of the performance of his duties on October 29, 2012~ [Appellate Division Record on Review, hereinafter "R:" 38] On that date~ Petitioner was working the 4:00p.m. to midnight shift during Hurricane Sandy, unofficially knm.vn as "Superstorm Sandy." [R: 39-40]. As Your Honors are aware, this storm was the largest in recent history causing significant damage in this state. The weather conditions duiing Hun·icane Sandy deteriorated so gravely that Petitioner and other officers of the Tmvn of Orangetown Police Department had been ordered to remain indoors. [R: 41] Petitioner stated that they were ordered to only respond to necessary calls or emergency situations. [R: 41] . Petitioner added that this was the first time that this had ever happened to him in his 19 years on patrol. [R: 41]. Sometime between 6:00p.m. and 7:00p.m., Petitioner received an emergency call for a tree falling on a house with trapped occupants. [R: 42-43]. Petitioner indicated that it took him an abnormal amount of time to respond to the aforementioned residence due to the fact that there were many roads in town blocked by fallen trees, wires, and flooding. [R: 42]. Upon the Petitioner's arrival, he observed that the tree that had fallen on the residence bad totally destroyed half of the roof as well as the rear and sidewall of the home, which was collapsed on 2 BARTlETT, MCDONOUGH & MONAGHAN, llP the victims. [R: 43]. Petitioner immediately requested the Fire Department, who is better equipped to respond to such emergencies, with a technical response unit. [R: 43]. Petitioner also called for EMS, additional ambulances, and additional police personnel. Other law enforcement officers from the other side of town were told to "stand down and not respond". [R: 43]. · Petitioner attested that due to the hazardous road conditions that it could take two hours for the Technical Rescue Team to get there and the regular Fire Department was going to be severely delayed. [R: 65]. Officer Kelly's assessment of the dire situation included information that there had already been one fatality amongst the people trapped inside. [R: 64]. Despite orders not to enter the home, Kelly and another Police Officer, James Acheson, proceeded into the house. [R 44, 64]. Petitioner stated he had no choice but to break the normal police protocol and could not wait for the specially trained members of the Fire Department to respond before he could take action. [R: 61-62, 67]. Petitioner indicated that he and Officer Acheson entered the residence and began pulling debris off the area where they heard the screams for help and saw two feet in the debris. [R: 66]. Petitioner testified that he felt a tug and pain in his shoulder after removing the first or second piece of plywood but ignored the pain because he was focused on getting the trapped parties out of the home. [R: 66]. Petitioner further stated while Officer Acheson was moving debris away from one of the trapped residents, suddenly and without warning, a rafter from above fell from the damaged structure. [R: 66]. He further stated he raised his right arm up to block and brace the rafter from falling on Officer Acheson and the trapped resident. [R: 58-59, 66]. At this point, Petitioner felt more pain in his shoulder and neck. [R: 67]. After getting the resident to safety, Petitioner and Officer Acheson continued to remove debris in order to dig out a second young woman. [R: 68]. At some point in time while getting the second trapped occupant out of the home, the Fire Department personnel began to arrive and these personnel took over. [R: 61, 68]. Petitioner testified that officer safety is the first thing learned in the Police Academy. [R: 52]. He said, "What you need to do is make sure that you're safe; the safety of your partner is taken into consideration; and you need to assess the scene, assess what you're getting into before moving forward. If I were to get hurt doing something without assessing the scene, I'm putting other first responders at risk. So officer safety is paramount." [R: 52-53]. 3 1: I, ~. ~: I !) ,· [ BARTLETT, MCDONOUGH & JI.10NAGHAN, LLP ARGUMENT Petitioner met his burden to demonstrate that the October 29, 2012 event constituted an "accident" as that term is used in RSSL § 363. The Hearing Officer detem1ined so, but Respondent improperly ovemued that determination. To obtain Accidental Disability Retirement Benefits, Petitioner has the burden of showing that he is permanently incapacitated from the performance of his duties as a result of an accident which occurred in the line of duty. See Murray v. DiN~poli, 79 A.D. 3d 1412, 1413 (3d Dept. 2010). Respondent conceded that Petitioner is permanently incapacitated as a result of this event. This court has defmed "accident" within the meaning of RSSL as something that arises out of a "sudden, fortuitous mischance, unexpected, out of the ordinary and injurious impact." Matter of Lichtenstein v. Board of Trustees of Police Pension Ftmd,_et al. 57 N.Y.2d 1010 (1982), quoting, Johnson Corp. v. indeminty Ins. Co. ofN. Am .. 6 A.D. 2d 97, a:ff'd. 7 N.Y.2d 222 (1959). It is not an injury " ..... sustained while performing routine duties but resulting from unexpected events," Matter of McCambridge v. McGuire, 62 N.Y. 2d 563 (1984), or emanating from risks inherent in an employee's regular duties, Matter of Cummings v. Regan, 107 A.D.2d 968 (3d Dept. 1985). In McCambridge, this court clarified the requirement that an accident injury must be the resllit of a "sudden, forluitous mischance, unexpected, out of the ordinary, and injurious in impact." In McCambridge, the petitioners were two New York City Police Officers whose applications for accidental retirement had been disapproved. One officer was injured as he moved away from the desk. He had placed his hand upon the shoulder of a fellow detective in order to steady himself. When the other detective unexpectedly moved, the officer lost his balance, fell to the floor and was injured. The second case involved an officer who was injured when he slipped and fell on wet pavement as he was about to enter his patrol car. The Court found that each of these injuries was the result of an accident and each exhibited a precipitating accidental event, i.e., a loss of balance and fall. These injuries did not result fi·om risks inherent in the job. In Pratt v. Regan, 68 N.Y.2d 746 (1986), this court considered and re-affirmed the principles set forth in McCambridge. In Pratt, a fireman was injured while exiting a fire truck. He caught his right heel on the running board, lost his batance and came down on his leg in a pothole. The Court felt that while catching a heel on a running board may be a risk of the work performed, coming down hard on the other foot in a pothole was not, and therefore, this was an accident. In Balduzzj v. McCaJl, 220 A.D.2d 796 (3d Dept. 1995), the Tiurd Department held that if an injury is in any way caused by activities beyond an inherent part of the applicant's job, the events causing the injury should be considered an "accident." Where, as here, an injury results, not solely from the employee's performance of an activity that is an inherent part of his or her job ... but from a sudden, unexpected and fortuitous 'mischance' unrelated 4 BARTLETT, MCDONOUGH & MONAGHAN, lLP to the ordinary risks of the job, that occurs while the employee is can·ying out his or her duties, the injury is considered an accidental one [citations omitted]. [Emphasis added.] I d .. The Applicant herein was not injured by any risk inherent to his job. Petitioner was forced to make a split second decision as a result of the sudden and unexpected falling beam that threatened the lives of himself and others involved in the event. The injury was not caused "solely" by an inherent part of his job, but rather by a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." McCambridge, Id. Petitioner was doing more than simply assjsting injured persons. The event transgressed beyond the risks that could be reasonably foreseeable in the course of his duties. He entered an Lmstable structure dmi.ng an unprecedented natural disaster, which 1mcontroverted testimony established was against protocol and also against specific instructions to stand down. The Applicant was not injured in the ordinary comse of duty. In Leuenberger v. McCall, 235 A.D.2d 906 (3d Dept. 1997), the matter involved a licensed practical nurse who was involved in the loading of a hospital patient into a van. Clearly, this was part of her nom1al duties. Suddenly, without warning, the rusted hinges of the van door gave way. She attempted to hold this heavy door in order to protect her coworker and the patient from being injured. Id. at 907. The court recognized selfless acts in the face of such exigent circumstances as accidental in nature. Here, Petitioner can1e to the aid of his co-worker and the three helpless victims under comparable exigent circumstances. In Cantone v. McCall, 289 A.D. 863 (3d Dept. 2001), a municipal water plant operator was seriously injured as a result of stepping over spools of wire in order to manually close a water valve. The operator did so because chlorine gas was escaping from the pump room. Access to the room was made difficult due to the stacking of large spools of wire stacked three to four feet high. The potentially lethal circumstances, which necessitated the operator's actions, were found to be accidental in this context. In the instant case, Petitioner faced a storm unlike any other experienced in his 19 year career. He broke protocol and risked his own life because three other people were injured by this unfortunate event. Leuenberger and Cantone are clearly analogous here. Petitioner went above and beyond to his own well-being to save lives. The hearing officer conectly found that the facts at issue are similar to those in Leuenberger and Cantone. Respondent's determination improperly overruled the decision of its hearing officer, which saw fit that the application for Accidental Disability Retirement be granted. Hearing officers are regularly used throughout various administrative agencies in the state, including within the New York State and Local Retirement System. This Court has indicated that "[a] hearing officer's report is entitled to weight, at times variously stated to be 'much', 'considerable' or the 'greatest', in determining the existence of substantial evidence, pruiicularly to the e>..1:ent that material facts in a given case may depend on resolving the credibility of v.itnesses as shown by their demeanor or conduct at the heruing." Simpson v. Wotansky, 38 5 r ~: I' 1' ~. ., .; ·! I!; BARTLETir MCDONOUGH 8t. MONAGHAN, llP N.Y.2d 391, 394, 343 N.E.2d 274, 276 (1975). Further, while this Court in Simpson acknowledges that a hearing officer's detemlination may be overruled by the adnlinistrative authority, the rationale for Respondent's determination nevertheless must be supported by substantial evidence. Id. Whlle Respondent has the authority to overrule the hearing officer, the findings of an admiillstrative hearing officer "are entitled to considerable weight and are significant in determining whether substantial evidence exists to support the charges. Miller v. Axelrod, 147 A.D.2d 969, 969, 537 N.Y.S.2d 711, 712 (4th Dept. 1989) (citing Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274 (1975); Matter of Kelly v. Murphy, 20 N.Y.2d 205,282 N.Y.S.2d 254,229 N.E.2d 40 (1967)). Respondents' determination ignores the rational recommendations of its own hearing officer. The determination is based on generalized legal conclusions and fails to consider the specific evidence presented before the hearing officer. Respondent's determination states that it is among the ordinary duties of police officers to respond to emergencies and any resulting injuries in those responses are not accidental1.mder RSSL §363. See Fisher v. New York State ComptrQller, 46 A.D. 3d 1006, 846 N.Y.S. 2d 482, 483 (3d Dept. 2007); Cadiz v. McCall, 236 A.D. 2d 766, 654 N.Y.s. 2d 48, 49 (3d Dept. 1997). Respondent utilizes ~adi1; to create a general rule that any resulting injury from perfmming regular duties as a police officer is not accidental tmder the RSSL. In Cadiz, the claimant was regularly required to travel by airplane in the course of his employment. The claimant in Cadiz jnjured his lower back "while lifting his carry-on luggage into the overhead compartment on an airplane while en route to retum a prisoner to New York." Id. at 766. Here, Petitioner entered an unstable structure during extreme weather conditions that he had not seen in his 1 9 yeru· career. Petitioner testified- as Respondent acknowledged in its decision- that he would not be required to enter the dwelling under normal circumstances, but he vvas expected to assist injured persons during an emergency. However, Respondent fails to address any of the evidence regarding how Applicant was nonnally expected to assist injured persons. Petitioner was not trained to enter an unstable building, but he was normally expected to pe1form duties such as maintaining a perimeter while awaiting the properly trained emergency personnel. Petitioner testified that upon arrival he immediately requested the Fire Department, who was equipped with a technicaJ response unit to respond. Petitioner further stated that he called for EMS, additional ambulances, and additional police pers01mel. Petitioner testified that the other law enforcement officers from the other side of town were told to "stand down and not respond". As such, Petitioner was put in an unordinary situation and discounted the normal expectations of his duties in order to assist others whose lives were at risk. The heru·ing officer witnessed Petitioner's testimony and properly "resolv[ ed] the credibility of witnesses as shown by [hls] demeanor or conduct at the hearing." Simpson at 394. Petitioner gave detailed testimony regarding what his expectations were as a police officer at the 6 ;.-; BARTLETT, MCDONOUGH & MONAGHAN, llP accident scene. Respondent's determination ignores these findings entirely and concludes that Petitioner voluntarily attempted a task routinely performed by other officers. Respondent cites to Caramante v. Regan, 129 A.D. 2d 850, 851-2, 513 N.Y.S. 2d 881, 883 (3d Dept. 1987) for support stating "any injury resulted from 'voluntarily attempting a task routinely performed by other officers,' and was therefore not 'accident."' Id. The claimant in Caramante injured his back while attempting to push a desk, a task that normally involved custodial assistance. The claimant in Caramante chose to push the desk on his own because he expected an extensive delay if he asked for assistance. Respondent's conclusions, which again overruled those of the hearing officer, suggest that pushing a desk in an office is similar to the events that Petitioner experienced during a once in a lifetime storm. It is disingenuous to suggest that the task of simply moving a desk inside a typical office is similar to entering an unstable structure containing three individuals whose lives are at risk during extraordinarily extreme weather. Further, while Petitioner's job duties included "[a]ssiting any injured persons" [Memorandum and Judgment, majority opinion p. 2], as discussed by the majority opinion of the Appellate Division in the instant matter, the dissenting opinion accurately states that "it was not his personal duty to directly provide aid in every circumstance. The uncontroverted testimony demonstrated that petitioner's job duties did not encompass entering unable structures under unsafe circumstances to carry out rescues; to the contrary, he was specifically instructed not to do so." [Memorandum and Judgment, dissenting opinion p. 4]. The dissent's opinion is in line with the long held standard that an "accident" under the RSSL arises out of a "sudden, fortuitous mischance, unexpected, out of the ordinary and injurious impact." Matter of Lichtenstein v. Board of Trustees ofPolice Pension Fund, et al, 57 N.Y.2d 1010 (1982), quoting, Johnson Corp. v. indeminty Ins. Co. ofN. Am., 6 A.D. 2d 97, affd. 7 N.Y. 2d 222 (1959). Not only was this a sudden accident from a failing beam in a collapsing structure, but the risk of that injury was not part of the ordinary hazards of Petitioner's job as a ·police officer. Rather, it was an unusual and fortuitous confluence of circumstances which prevented him from waiting for the Fire Department. 7 I f [; t 1 ... " BARTlETT, MCDONOUGH & MONAGHAN, llP CONCLUSION The judgment of the Appellate Division should be reversed. It is clear the event of October 29, 2012 was an accident as that term is defined by the case law, even though Petitioner was responding to injured persons. The determination of Respondent, which overruled and superseded the findings of facts and conclusions of the Hearing Officer, and which denied Petitioner's Application for Accidental Disability Retirement benefits was arbitrary and capricious, and not supported by substantial evidence on the record. Accordingly, the petition should be granted with Respondent's determination arumlled, granted Petitioner's application for Accidental Disability Retirement. cc: Respectfully ~bmitted, /1 ~ /; ( ~--~··-"e .. •• ... .., / / ,,-· ..._.....-· Jason L~is, Esq. BARTLETT, MCDONOUGH & MONAGHAN, LLP Attorneys for Petitioner 81 Main Street 'White Plains, New York 10601 (914) 448-0200 The Attomey General of the State ofNew York The Capitol Albany, New York 12224 Attn: William Storrs, Esq., Assistant Solicitor General Attorneys for Respondent 8 . -: fl ,, ;-~ AFFIDAVIT OF SERVICE STATE OF NEW YORK COUNTY OF WESTCHESTER ) ) ) Vihang Desai, being duly sworn, deposes and says that deponent is not a party to the action, is over 18 years of age, and resides at 57 Gillies Street, Clifton, NJ 07013 . That on the 19th day of May, 2016, deponent served the within: LETTER BRIEF upon designated counsel for the parties indicated herein at the addresses provided below by depositing 3 true copies thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. HON. ERIC T. SCHNEIDERMAN THE ATTORNEY GENERAL OF THE STATE OF NEW YORK Attn: WILLIAM STORRS, ESQ. Attorneys for Respondent-Respondent The Capitol Albany, New York 12224 Sworn to before me this 19th day of May, 2016 ~ct~ Notary Public ERIC ROBERT LARKE Notary Public, State of New York No.01LA5067236 Qualified in Westchester County Commission Expires March 5, 2019 t ~. ___: ;~r · !hang Desai Original 9997