In the Matter of James J. Kelly, Appellant,v.Thomas P. DiNapoli,, Respondent.BriefN.Y.January 2, 2018THE CAPITOL, ALBANY, NEW YORK 12224-0341 • PHONE (518) 776-2050 • FAX (518) 915-7724 *NOT FOR SERVICE OF PAPERS http://ag.ny.gov STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN ATTORNEY GENERAL TELEPHONE (518) 776-2037 BARBARA D. UNDERWOOD SOLICITOR GENERAL July 20, 2016 Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Kelly v. DiNapoli APL -2016-00083 Dear Mr. Asiello: Respondent Comptroller DiNapoli submits this letter in response to your letter of April 28, 2016, notifying the parties that the Court has selected this appeal for expedited merits consideration pursuant to Rule 500.11. At issue is a determination by respondent denying the application of petitioner James J. Kelly for accidental disability retirement benefits, and thereby relegating him to receive performance of duty disability benefits, which are not quite as favorable. In confirming the determination, albeit over a two-judge dissent, the Appellate Division, Third Department, found substantial evidence supporting respondent’s determination that petitioner’s injuries resulted from foreseeable risks inherent in his work as a police officer, as opposed to an unforeseeable accidental event that was not a risk of the job and thus would justify an award of accidental disability retirement benefits. For the reasons set forth below and in respondent’s brief in the Appellate Division, the Appellate Division’s decision was correct. It was also Page 2 consistent with numerous Appellate Division decisions in which this Court has denied leave to appeal. Accordingly, the Court should affirm. Statutory Background: The Different Kinds of Disability Retirement Benefits 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. 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, but can be as favorable as a service retirement benefit. See R.S.S.L. § 362(b)(2).1 The most difficult kind of disability retirement benefits to obtain 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 petitioner 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 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)(1), 444(a). Page 3 by any benefit payable 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 necessarily 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 accidental disability retirement benefits were so difficult to obtain. See 1984 N.Y. Laws ch. 661, Bill Jacket at 11 (March 1, 1984 Memorandum of New York State Employees Retirement System). 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). Facts and Procedural History 1. 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 (195- 196).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 (197). Petitioner timely requested a hearing and redetermination (142). 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 (63-64). His official written job description 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. See 1998 N.Y. Laws ch. 489 (amending R.S.S.L. § 444(a)). 3 Citations are to pages in the Record on Review. Page 4 specifically provided that he was required to “immediately respond” to any call in his assigned area and “[a]ssist any injured persons” (94). On October 29, 2012, petitioner was working the 4:00 p.m. to Midnight shift assigned to a one-man police car (39). Hurricane Sandy was in full progress that evening, with heavy rains, flooding, and high winds (39-40). Shortly after petitioner’s shift began, many of the town’s roads became blocked by fallen trees, poles and wires (41). 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 (41). Between 6:00 and 7:00 p.m., petitioner received a call that a tree had fallen through a house, trapping its occupants inside (41, 43). He responded, as did Officer Atchinson (43). 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 victims, and rain was pouring in (43). Petitioner called for the fire department (which has a technical response unit), EMS, additional ambulances and additional police officers (43). 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 (43-44). 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 (62-63). On this occasion, however, and despite his lack of training in rescuing people from unstable buildings, petitioner explained that he had “no choice” but to try to rescue the people trapped inside; otherwise they would have died (57, 62, 64-65, 67). 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 (44, 64-64). Petitioner walked around the back of the house, observed that the walls had collapsed and that the structure appeared to be unstable (65). When he entered the building, he heard screams for help (55). He 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 (66). He climbed to the top of the pile of debris and began the process of throwing debris out the back of the building Page 5 to rescue the people trapped underneath (58, 66). As he threw the first or second piece of plywood, he felt a pain in his shoulder, but he kept going (58, 66). Meanwhile, Officer Atchinson was working inside the house underneath the fallen tree, trying to free one of the inhabitants (58). 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 (58, 69). The two officers were able to rescue two occupants of the house, the daughters, before the fire department arrived. The father of the house had perished before the officers’ arrival, and the fire department was able to rescue the mother (55, 61, 68). 2. The Comptroller’s Final Determination Although the hearing officer believed that petitioner’s injuries were incurred in an “accident,” within the meaning of R.S.S.L. § 363 (27-28), the Comptroller determined otherwise and denied petitioner’s application for accidental disability retirement benefits (19-20). (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 part of petitioner’s job was to respond to emergencies (20). Petitioner’s written job duties stated as much (19). 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 (19). 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 (19-20).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 (20). The Appellate Division did not ultimately address this alternative rationale, and we do not rely on it here. Page 6 3. Proceedings 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 1470 (3d Dep’t March 24, 2016). The Appellate Division 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.5 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 1471-72. 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 dangerous nature of his work as a police officer. 137 A.D.3d 1472-1473. 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. 5 The Appellate Division further noted that, to the extent petitioner’s testimony suggested that his duties were more limited, the Comptroller was not required to credit that testimony over the official written job description contained in the record. 137 A.D.3d at 1471, n.1. Page 7 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 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.” See R.S.S.L. §§ 363, 374(d); State Administrative Procedure Act § 306(1); see also Matter of Keller v. Regan, 212 A.D.2d 856, 857 (3d Dep’t 1995) (implementing this rule). This Court has explained that an “accident” for purposes of the R.S.S.L. and analogous retirement benefit statutes 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); see also Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) (reiterating this rule). There must be “a precipitating accidental event . . . which was not a risk of the work performed.” Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839 (1998) (omission in original). 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 Page 8 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, petitioner failed to sustain his burden of proving that his injuries were accidental. As the Appellate Division properly reasoned, substantial evidence supports the Comptroller’s determination that petitioner’s job duties included responding to emergency calls and assisting injured persons. Petitioner’s official written job duties specifically so provided. And while petitioner claimed that under normal protocols, his job would have been to secure the perimeter while other emergency responders performed the rescue, he nonetheless admitted that, in the absence of other responders, responsibility for the rescue rested with him and Officer Atchinson. Moreover, the risk that he confronted in performing that rescue was open and obvious—a tree had taken down half of the house’s roof, along with its rear and side wall, water was pouring in, and the house’s occupants were trapped under the fallen debris. No precipitating accidental event intervened. Indeed, as to the exertion injury petitioner suffered as a result of his efforts to pull debris off of the victims and throw it out the back of the house, there was no precipitating event at all. And as to the exertion injury he suffered as a result of his efforts to brace a shifting rafter and keep it from collapsing on his colleague, there was no precipitating accidental event. To the contrary, the further collapse of the house was foreseeable, perhaps inevitable, in light of the extensive and readily apparent damage that the fallen tree had already caused. Petitioner’s exertion injuries were thus not accidental. Rather, they were the foreseeable result of petitioner’s heroic rescue efforts that evening. Indeed, petitioner does not argue here that his injuries were caused by an unanticipated or unforeseeable risk. Instead, he argues that the risk was of such magnitude that his resulting injuries should not have been considered the result of performing “ordinary” duties. Petitioner’s argument is mistaken for two reasons. First, petitioner’s argument finds no support in the case law. To the contrary, where a member of the Retirement System has been injured as a result of a risk created by severe weather conditions, the courts have consistently upheld the Comptroller’s view that such weather conditions, in and of themselves, do not render an incident an accident. Page 9 For example, Matter of Flynn v. Hevesi, 308 A.D.2d 674 (3d Dep’t), motion for leave to appeal denied, 1 N.Y.3d 504 (2003), involved a school custodian who was injured while shoveling snow following a severe snowstorm when he slipped on snow packed down by a construction vehicle used to partially clear the walkways. The petitioner in the case testified that he had shoveled snow on many occasions, knew that snow was slippery, and on the day in question actually observed the construction vehicle compacting the snow and ice on which he ultimately slipped. He nonetheless contended that his fall should be deemed an accident in light of the extraordinary and unprecedented weather conditions. The Appellate Division expressly rejected his argument. It explained that, “absent a sudden and unexpected event that was not a risk of the work being performed, severe weather conditions alone are insufficient to transform what would otherwise be an incident into an accident.” 308 A.D.2d at 675-76. Accord Matter of Kazmierczak v. McCall, 252 A.D.2d 728 (3d Dep’t), motion for leave to appeal denied, 92 N.Y.2d 813 (1998) (groundsperson at the Greater Buffalo International Airport injured when he stepped onto icy truck exterior during severe snowstorm). Similarly, in this case, the severity of the weather did not render this incident an “accident” within the meaning of R.S.S.L. § 363. Rather, it involved risks inherent in the work performed because petitioner’s job duties required him to respond in an emergency and assist injured persons, without limitations on account of weather conditions. Second, if the Legislature had intended severe weather or other extraordinary conditions to render an incident an accident, it would not have needed to amend the R.S.S.L. to address specific extraordinary circumstances, as it has in the past. For example, following the events of September 11, 2001, the Legislature enacted new provisions of the R.S.S.L., including amendments to R.S.S.L. § 363.6 See 2005 N.Y. Laws ch. 93, § 2; 2005 N.Y. Laws ch. 104, p. A, § 2; 2006 N.Y. Laws ch. 445, § 3; 2007 N.Y. Laws ch 5, §§ 5, 6; 2008 N.Y. Laws ch. 489, § 3. A newly enacted section 363(g)(1)(a) provides that, notwithstanding the provisions of any law to the contrary, proof that a 6 The amendments also amended the administrative code of New York City, which governs retirement benefits for the New York City Police and Fire Retirement System. See 2005 N.Y. Laws ch. 93, § 14. Page 10 member has incurred a condition or impairment of health caused by a “qualifying World Trade Center condition,” as defined in the statute, shall be presumptive evidence that such disability was incurred in the performance and discharge of duty as the natural and proximate result of an accident. Section 363(g)(2) provides a similar benefit retroactively. It provides that, notwithstanding the provisions of any law to the contrary, proof that a member who participated in “the World Trade Center rescue, recovery or cleanup operations” as subsequently defined, and subsequently retired on an ordinary or performance of duty disability retirement and was determined by the Comptroller to have a qualifying World Trade Center health condition, shall constitute presumptive evidence that such disability was incurred in the performance and discharge of duty as the natural and proximate result of an accident. R.S.S.L § 363(g)(2)(A). And in such a case, the Comptroller is directed to consider a reclassification of the member’s retirement as an accidental disability retirement. R.S.S.L. § 363(g)(2)(b). Should the Legislature find that the extraordinary weather conditions that resulted from Hurricane Sandy warrant similar treatment, it can enact legislation specifically addressing the situation. The fact that it has not done so, however, as well as the fact that it has taken no action expressing disapproval of the long-standing manner in which the Retirement System has treated weather emergencies generally, provides additional reason to leave that treatment intact. The provision of more favorable retirement benefits than those already provided by statute is a matter that the Legislature can address.7 7 Indeed, even without addressing Hurricane Sandy more broadly, should the Legislature conclude that the application of the law in this particular case is inequitable in any way, it could enact special legislation to address the issue, as it recently did following the Appellate Division’s decision in Matter of O’Brien v. DiNapoli, 116 A.D.3d 1124 (3d Dep’t), leave to appeal granted, 23 N.Y.3d 908 (2014), motion granted, 23 N.Y.3d 1030 (2014), appeal dismissed, 2015 N.Y. LEXIS 1321 (N.Y., Mar. 12, 2015). O’Brien involved the application for ordinary disability retirement benefits submitted by the widow of a State Trooper who had died as a result of injuries sustained in a non-work related accident. The application was denied as untimely because it was submitted after, albeit by only minutes, the Trooper’s death, and the Appellate Division upheld the denial. The Legislature thereafter enacted special legislation granting the widow the right to file for ordinary disability retirement benefits on behalf of decedent. See 2014 N.Y. Laws ch. 503. Page 11 Petitioner makes three other arguments warranting a response. First, citing Matter of Leuenberger v. McCall, 235 A.D.2d 906 (3d Dep’t 1997), and Matter of Cantone v. McCall, 289 A.D.2d 863 (3d Dep’t 2001), petitioner suggests that the Appellate Division has not always consistently applied this Court’s principles governing the distinction between accidental injuries and injuries incurred as a result of a risk inherent in a job. Even if that were true, it would not warrant a different result in this case. Here, the Appellate Division faithfully applied those principles. In fact, however, the cases on which petitioner relies reflect a proper application of those principles. Both involved injuries precipitated by an accidental event, and thus both held that accidental retirement disability benefits were available. In Leuenberger, the rusted hinges of a door suddenly gave way; in Cantone, large spools of wire from a contractor working on an unrelated project had been left in the path necessary to reach a valve that had become stuck and thus needed to be closed manually to prevent an imminent chlorine leak. Second, petitioner argues that the Comptroller improperly superseded the recommendation of the hearing officer. Because the Legislature has granted the Comptroller has exclusive authority to determine all applications for any form of retirement or benefit under the R.S.S.L. §§ 74 and 374, the recommendations of the hearing officer are necessarily not binding on the Comptroller. Matter of Lewandowski v. New York State and Local Police and Fire Retirement System, 69 A.D.2d 1027 (3d Dep’t 2010). And finally, petitioner argues that, allowed to stand, the Appellate Division’s decision will always permit the Comptroller to deny accidental retirement disability benefits to police officers for injuries incurred in the course of responding to emergencies, since responding to emergencies is a duty of police officers. That is not the case. An officer injured as a result of a precipitating accidental event will be entitled to accidental disability benefits, even if that accident occurred while the officer was responding to an emergency. Ultimately, each incident must be judged on its own facts. This case simply reflects the long-standing rule, articulated by the Court, 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 at 1012. Page 12 For all these reasons, the Court should affirm the decision below dismissing the petition. Respectfully yours, ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General cc: BARTLETT, McDONOUGH & MONAGHAN, LLP Jason Lewis Esq. 81 Main Street White Plains, New York 10601 Printed on Recycled Paper AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY ) _..;...Ji..:.:..\ ...!...V..:..I.IO-l-.!.}0--=-__.Sh:.z..:........:a=lvJ:...=.....;::;;___ _ _.. being duly sworn, deposes and says: I am over eighteen years of age and an employee in the office of ERIC T. SSCHNEIDERMAN, Attorney General of the State of New York, attorney for Respondent(s) herein. · tG) I'IA11. thru..(3) 0 On the _dJ_ .. , day of July, 2016, I served~ (e.} of the annexed Letter upon the attorney named below by depositing a true copy thereof, properly enclosed in a sealed, postpaid wrapper, in a letter box of the Capitol Station Post Office in the City of Albany, New York, a depository under the exclusive care and custody of the United States Post Office Department, direct~d to the said attorney at the address within the State and Respectively designated by him for that purpose as follows: BARTLETI, McDONOUGH & MONAGHAN, LLP Jason Lewis, Esq. 81 Main Street White Plains, New York 10601 Sworn to before me this dJh day of July, 2016. ~R .• NOTARYPiC CRIST AI.. R. GAZELONE Notary Public, State of New York Reg. No. 01GA6259001 Qualified in Rensselaer C~ Commission Expirea April2, ~