In the Matter of James J. Kelly, Appellant,v.Thomas P. DiNapoli,, Respondent.BriefN.Y.January 2, 2018STATE OF NEW YORJ( 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. D0ughe1ty, Esq. Time Requested: 20 Minutes Petitioner-Appellant, Respondent-Respondent, For a Judgment Pursuant to Article 78, CPLR, to review and annul the determination 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 Comt deems just and proper. Of Counsel: REPLY 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: May 16, 2017 Table of Contents Page No. PRELIMINARY STATEMENT ................................................................................................. 1 ARGUMENT ................................................................................................................................. 3 POINT I ......................................................................................................................................... 3 THE COMPTROLLER'S DETERMINATION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE .................................................................................................. 3 POINT 11 ........................................................................................................................................ 8 THE COURT SHOULD NOT BE SWAYED BY THE COMPTROLLER'S REFERENCES TO MATTERS OUTSIDE THE RECORD ............................................... 8 CONCLUSION ........................................................................................................................... 11 CERTIFICATE OF COMPLIANCE WITH 22 NYCRR 500.13 (C) .................................... 12 TABLE OF CASES AND AUTHORITIES Page No. Cases Matter of Bennett v DiNapoli, 119 AD3d 1310 (3d Dept 2014) .................................................... 9 Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516 (1985) .................................. 8 Matter of Hoehn v New York State Comptroller, 122 AD3d 984 (3d Dept 2014) ........................ 9 Matter of Lenci v DiNapoli, 92 AD3d 1078 (3d Dept 2012) ..................................................... 4, 5 Matter of Levine v New York State Liquor Auth., 23 NY2d 863 (1969) ...................................... 8 Matter of Meyer v New York State Comptroller, 92 AD3d 1122 (3d Dept 2012) ......................... 3 Matter of Sica v DiNapoli, 141 AD3d 799 (3d Dept 2016), appeal dismissed 28 NY3d 1112 (2016) ...................................................................................................................................... 3, 4 Matter of Sikoryak v DiNapoli, 104 AD3d 1042 (3d Dept 2013) .............................................. 5, 6 Matter of Yoga Vida NYC, Inc. (Commissioner of Labor), 28 NY3d 1013 (2016) ...................... 3 Statutes Retirement and Social Security Law§ 374 ..................................................................................... 8 Vehicle & Traffic Law§ 1144-a ..................................................................................................... 9 11 PRELIMINARY STATEMENT The Comptroller's brief makes clear that his determination to overrule his own hearing officer's recommendation and deny Kelly ADR benefits lacks substantial support in this record. The Appellate Division majority should not have countenanced the Comptroller's decision to substitute his interpretation of the term "assist" in Kelly's job duties for the uncontroverted testimony, deemed credible by the hearing officer, of the police department's explanation to its officers of the meaning of that word. Moreover, according to the Comptroller, Kelly should have foreseen the rafter that fell towards his colleague because the building they entered had been damaged. The Comptroller reached this conclusion by disregarding Kelly's uncontrove1ted testimony that he believed the building to be unstable but sound enough that he and his fellow officer could, under the circumstances, attempt to rescue the trapped individuals inside. Indeed, Kelly specifically testified he did not anticipate that the rafter would fall on his colleague. Kelly's heroism on the night of the accident is undisputed. The vigorous dissent at the Appellate Division makes clear that it is time for this Court to provide more guidance regarding the application of this Court's definition of "accident" to emergency responders like Kelly. This Court has never held that the only police officers and fire fighters entitled to ADR benefits are those injured in a 1 slip-and-fall in an office or when exiting a vehicle. But that is what the Appellate Division majority believed. This is not a matter for the Legislature. It is a misperception that this Comt can, and should, correct. Accordingly, Kelly respectfully requests that the Memorandum and Judgment of the Appellate Division be reversed, and the Comptroller's determination be annulled. 2 ARGUMENT POINT I THE COMPTROLLER'S DETERMINATION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE This Comt has "described substantial evidence as ' [ m]ore than seeming or imaginary' but 'less than a preponderance of the evidence"' and "that a 'practical test' for determining whether substantial evidence exists is to 'measur[ e] the evidence against the standard of sufficiency such as to require a court to submit it as a question of fact to a jury"' (Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1017 [2016] [citation omitted]). Applying these principles, the Court should agree with the Appellate Division dissenters that substantial evidence is lacking in this case. Notably, the Comptroller's determination that a police officer's fall from an office chair was not accidental lacked substantial record support because there was uncontrove1ted testimony that the fall was not her fault (see Matter of Meyer v New York State Comptroller, 92 AD3d 1122, 1123 [3d Dept 2012]). More recently, the Appellate Division properly annulled a determination of the Comptroller because he denied ADR benefits based upon an applicant's "broadly written job description" instead of his hearing testimony explaining his duties (Matter of Sica v DiNapoli, 141 AD3d 799, 801 [3d Dept 2016], appeal dismissed 28 NY3d 1112 [2016]). As that court explained, what constitutes an accident 3 "should not be determined merely by reference to job descriptions. Otherwise, emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation" regardless of the circumstances (id.). Kelly's uncontroverted testimony establishes his entitlement to ADR benefits. Indeed, the hearing officer, who assesses credibility, recommended that Kelly receive ADR benefits. Yet in this case, the Comptroller and the Appellate Division majority erroneously concluded otherwise. The Comptroller's determination was improperly based upon his subjective reading of a departmental order applicable to Kelly, rather than Kelly's explanation of how the depa1tment actually operated. The Comptroller contends that the Appellate Division majority decided this case "consistent with its prior decisions addressing injuries incurred by emergency responders in situations involving foreseeably unsafe or unstable structures" (Comptroller's Brf., at 16). The cases referenced by the Comptroller are distinguishable and do not, in any event, demonstrate that the determination in this case had substantial support in the record. In Matter of Lenci v DiNapoli (92 AD3d 1078 [3d Dept 2012]), the Appellate Division confirmed a determination denying ADR benefits to a police officer. That officer had "testified that while he was providing emergency assistance to a citizen who was trapped beneath concrete pieces atop a 'precarious' 4 and 'off kilter' scaffolding shifted, causing [the officer] to injure his back" (id. at 1079). The comt noted that the officer's "job duties included responding to various types of emergencies and providing assistance to citizens in need" (id.). Consequently, the officer's "injury occurred while he was performing his ordinary job duties, was within the normal risks inherent in the perfmmance of those duties, and could have reasonably been anticipated" (id.). In Matter of Fiducia v DiNapoli (111 AD3d 1018 [3d Dept 2013]), the officer denied ADR was hmt when he "slipped on dog feces and fell down the stairs" during a search of an abandoned building (id. at 1019). The officer had "conducted a similar search of that building approximately one month prior and was aware that the building had formerly been occupied by drug dealers who owned pit bulls" and that "the building in general was a mess" (id.). There was no identified urgency behind the search, and the officer testified that the search was part of "his regular job duties" (id.). Finally, the Comptroller relies upon Matter of Sikoryak v DiNapoli (104 AD3d 1042 [3d Dept 2013]). In that case, an officer tripped on an unseen "'pile of debris'" during a search of a "vacant and abandoned school that he knew had been in disrepair for some time" (id. at 1043). The court deemed it particularly significant that the officer "acknowledged that part of his duties included entering and searching strange buildings where he ran the risk of 'running into conditions 5 that are less than desirable'" (id.). The record does not support the conclusion that Kelly's injuries were within the foreseeable risks inherent in the performance of his duties as a police officer. First, Kelly described the accident scene differently from those in Lenci, Fiducia, and Sikoryak. He testified that the building was "unstable" (R. 73 ), but that he had first followed department protocol and assessed "the scene" and determined that entry was appropriate under the circumstances (R. 67). Indeed, he testified specifically that he "did not" know that the rafter was going to come down before it fell towards his partner (R. 73). Further, there was no record evidence suggesting Kelly should have expected the danger. Nothing indicates Kelly had been to this location before. Kelly testified that he had no training in performing rescues in unstable buildings (see R. 71). This was not a routine building inspection like that in Fiducia. Consequently, the record does not support the conclusion that he should have expected the rafter to fall onto his partner during the rescue. Second, and more critically, the record does not support the determination that Kelly's injuries were foreseeable during the performance of his assigned duty to assist injured persons. The applicable departmental general order states merely that"[ w ]hen assigned to a call in their area, Officers will immediately respond to the location of the call in accordance to Departmental procedures" and "[a]ssist 6 any injured persons and request necessary medical assistance (I.E. Paramedics, ambulance)" (R. 108). When asked if this general order obligated him to enter a building to rescue injured persons in all circumstances, Kelly explained: "Well, we're supposed to maintain our safety. So if it's an unsafe area for me to enter, we don't. We call the experts. The people who are trained to do something like that" (R. 78). Because the house initially appeared unsafe, Kelly "called the fire department and the rescue team" (id.). That was all the general order required Kelly to do (see R. 81). Normally, Kelly would have simply "maintain[ed] the perimeter outside" until the proper, trained response team arrived (R. 76). Once Kelly and his fellow officer learned that the fire department and its technical response unit might "be two-hours delayed" based upon the "road conditions and the severity of the weather" caused by Superstmm Sandy, they decided to attempt a rescue themselves (R. 79). Such a rescue attempt was not what Kelly was "trained to do" but he felt he "had no choice but to go in there and help these people" (R. 81 ). Kelly was the only witness who testified at the hearing ' and the only person who could explain the terms of the applicable general order relied upon by the Comptroller and Appellate Division majority. The Comptroller's interpretation of the general order in a manner contrary to Kelly's testimony was improper under the circumstances. Accordingly, the record does not support the Comptroller's determination 7 and this Court should reverse. This Comt can easily correct the error in this case. There is no need to res01t to the Legislature for a private bill as the Comptroller suggests (see Comptroller's Brf, at 23-24, n 6). POINT II THE COURT SHOULD NOT BE SWAYED BY THE COMPTROLLER'S REFERENCES TO MATTERS OUTSIDE THE RECORD As a general matter, "a court's review of administrative action is limited to the record made before the [agency]" (Matter of Levine v New York State Liquor Auth., 23 NY2d 863, 864 [1969]). The Comptroller raises a number of matters in his brief that are outside of the record. These matters should be disregarded by the Court as they are not relevant to whether substantial evidence supported the determination at hand. Notably, the Comptroller claims that he "has granted accidental disability benefits to emergency responders" in a number of "unreviewed determinations" (Comptroller's Brf, at 25). At most, these unreviewed Comptroller determinations indicate that his present determination was an "arbitrary and capricious" deviation from administrative stare decisis inasmuch as he reached "a different result on essentially the same facts" (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516,517 [1985]; see Retirement and Social Security Law§ 374 [outlining the Comptroller's authority]). In particular, the Comptroller states he has granted ADR benefits to "a 8 police office who was injured when the tire on a passing vehicle suddenly blew out" and to "a firefighter responding to a motor vehicle accident who was injured when he had to jump out of the way to avoid being hit by an uninvolved, out-of control car" (Comptroller's Brf., at 25). The Comptroller's description indicates those past cases are really no different from the present case. With respect to the first case, involving the police officer, roadside stops to provide assistance or to respond to a crime are pa1t of an officer's normal duties (see Matter of Hoehn v New York State Comptroller, 122 AD3d 984, 986 [3d Dept 2014]; Matter of Bennett v DiNapoli, 119 AD3d 1310, 1311 [3d Dept 2014]). With respect to the second case, involving the fire fighter, responding to the scene of a motor vehicle accident was presumably within the general duties of that individual as a first responder. The side of the road can be a hazardous place. For this reason state law requires passing vehicles to, if possible, move over from the lane adjacent from a stopped police or fire vehicle displaying flashing lights (see Vehicle & Traffic Law§ 1144-a). Consequently, while the specific events that injured these officers might have been sudden and unexpected, in the abstract hazards such as an exploding tire or an out-of-control vehicle are plainly part of the foreseeable danger of working by the side of the road. Yet, unlike Kelly, these officers received ADR benefits. Kelly was injured protecting his fellow officer from an unforeseen hazard while performing a rescue. It was arbitrary and 9 capricious for the Comptroller not to grant ADR benefits to Kelly. 10 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 determination be annuUed, 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 May 16, 201.7 Respectfully submitted, HINMAN S"B P.C. By:___£...,.(~~/v~/ ~~~- J0s~ph M. Dougherh 1 / z-;~ f; Appellate Counsel to Petitioner-Appellant 12 J State Street Albany, NY 12207 (518) 436-0751 11 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 of the document exempted by Rule 500.13 (c) (3), the document contains 1986 words. Dated: Albany, New York May 16, 2017 Respectfully submitted, HINMAN STRAUB P.C. //) .. �. I ii ;;;:: fv;/ 1 I I �; By: i 1 , i� )5sephM. Doug�v. Appellate Counsel to P�tionetAppellant 121 State Street Albany, NY 12207 (518) 436-0751 12