Rizzo v. DiNapoli
| Decision Date | 27 October 2022 |
| Docket Number | 106 SSM 16 |
| Citation | 39 N.Y.3d 991,202 N.E.3d 559,182 N.Y.S.3d 1 (Mem) |
| Parties | In the Matter of Rosa RIZZO, Appellant, v. Thomas P. DINAPOLI, as State Comptroller, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
McIntyre, Donohue, Accardi, Salmonson & Riordan, Bay Shore (Sean Patrick Riordan of counsel), for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood, Andrea Oser and Victor Paladino of counsel), for respondents.
On review of submissions pursuant to section 500.11 of the Rules, judgment affirmed, with costs.
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 Kelly v. DiNapoli, 30 N.Y.3d 674, 681, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018], quoting Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] ). Substantial evidence supports the determination that the precipitating cause of petitioner's injuries was not an accident.
We need not address our dissenting colleague's assertion that the Appellate Division majority applied a legal standard contrary to our precedent when that court "resort[ed] to a ‘reasonably anticipated’ doctrine" (dissenting op. at 999, 182 N.Y.S.3d at 6, 202 N.E.3d at 564). Any substantive distinction—if there is one—between the "reasonably anticipated" standard applied below and the standard we applied in Matter of Kelly is irrelevant here. Petitioner conceded that she knew that the heavy metal door slammed automatically and that on the day of the injury her movements were intended to avoid that quick and forceful closure. While the known condition may be a risk of the work site, it cannot be the cause of an accident compensable under Retirement and Social Security Law § 363.
Our dissenting colleague nevertheless persists in expressing dissatisfaction with the relevant case law (compare Kelly, 30 N.Y.3d 688–691, 70 N.Y.S.3d 881, 94 N.E.3d 444 [Wilson, J., dissenting] [] with dissenting op. at 1005–1006, 182 N.Y.S.3d at 11, 202 N.E.3d at 569 []) and revives his proposal for a two-part test (compare Kelly, 30 N.Y.3d at 686–687, 70 N.Y.S.3d 881, 94 N.E.3d 444 [Wilson, J., dissenting] [] with dissenting op. at 994, 182 N.Y.S.3d at 2-3, 202 N.E.3d at 560-61 []; Kelly, 30 N.Y.3d at 690–691, 70 N.Y.S.3d 881, 94 N.E.3d 444 [Wilson, J., dissenting] [same] with dissenting op. at 1003–1004, 182 N.Y.S.3d at 9-10, 202 N.E.3d at 567-68 [same]). But we must again reject the invitation to rewrite the statute and reiterate that doing so would be "inconsistent with the legislative policy choice to grant more generous disability benefits to police officers or firefighters injured by stepping into a pothole, or slipping on wet pavement or when getting up from a desk chair" ( Kelly, 30 N.Y.3d at 681 n. 1, 70 N.Y.S.3d 881, 94 N.E.3d 444 ).
Rosa Rizzo worked for the Port Authority of New York and New Jersey as a police officer. On a cold February day, she trudged through the sleet and cold winds at the Lincoln Tunnel to tend to an ailing woman, staying with her until an ambulance arrived. Once it arrived, Officer Rizzo gathered the names of the parties and witness testimony and then headed towards the heated MTA booth so she could write her report. She had used the booth before and knew that its door could swing closed, but she had never heard of anyone being injured by it. As she squeezed into the booth, however, a violent gust of wind blew the 80 to 100 pound door shut, crushing her right index finger and permanently disabling her from returning to her to a full duty position. It is undisputed that Officer Rizzo is permanently disabled as a result of the door crushing her hand. The door lacked a safety mechanism to prevent exactly this kind of hazardous condition. A "commonsense" way of characterizing this event would be to say that Officer Rizzo was permanently disabled in a workplace accident ( Matter of Lichtenstein v. Bd. of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] ).
The majority disagrees, stating that substantial evidence supports the proposition that the crash of the heavy metal door was not "an accident." Our decisions and those of the lower courts in this area produce erratic and inexplicably inconsistent outcomes (see Matter of Kelly v. DiNapoli, 30 N.Y.3d 674, 686, 70 N.Y.S.3d 881, 94 N.E.3d 444 [2018], Wilson, J., dissenting in part).
Injured governmental employees and their employers would greatly benefit from a standard that produced clear, intelligible, predictable and fair results. In the wake of the courts’ inability to do so, that task falls to the legislature. Our decisional law concerning Retirement and Social Security Law § 363 asks whether an injury was caused by an accident, a word that has been contorted beyond recognition by courts’ efforts to apply a "commonsense definition of a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ " ( Lichtenstein, 57 N.Y.2d at 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 ). That definition was first penned in 1958. Its invocation of "fortuitous mischance," which phrase served Faulkner well, has floundered as a legal term of art (compare Lichtenstein, 57 N.Y.2d at 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946, quoting Arthur A. Johnson Corp. v. Indemnity Ins. Co. of N. America, 6 A.D.2d 97, 100, 175 N.Y.S.2d 414 [1st Dept. 1958], affd 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.E.2d 704 [1959] with William Faulkner, Go Down Moses 287 [1940]). Our subsequent attempts to clarify that abstruse definition have invited greater confusion.
Our precedents have failed to provide guidance allowing for predictability and consistency; by synthesizing them into two discrete questions we can offer better guidance resulting in more consistent results. To more easily traverse our doctrine, courts should engage in two clear, cabined inquiries to ensure that disability awards fit the purposes of the statutory scheme. Courts should ask "(i) whether the nature of the hazard is part of the bargained-for risks of the job and (ii) whether it is truly unexpected and out of the ordinary, or rather is part of the ordinary risks of daily life" ( Kelly, 30 N.Y.3d at 686, 70 N.Y.S.3d 881, 94 N.E.3d 444, Wilson, J., dissenting in part). Admittedly, no test can create perfectly consistent results given the haphazard application of the existing doctrine and the illogic of the underlying statutory scheme. But a clearer exposition, with attention to the underlying legislative purpose, would help achieve greater consistency and transparency.
The majority rejects my opinion as an "invitation to rewrite the statute" (majority mem. at 993, 182 N.Y.S.3d at 1, 202 N.E.3d at 559). I have extended an invitation; the majority just has the wrong guest in mind. I am not inviting our Court to rewrite the statute; we have been unsuccessful in interpreting it (see infra at 1005–1006, 182 N.Y.S.3d at 11, 202 N.E.3d at 569). I am again inviting the legislature to do so. As Kelly itself states in the footnote that supposedly rejects my suggestion: ( Kelly, 30 N.Y.3d at 681 n. 1, 70 N.Y.S.3d 881, 94 N.E.3d 444 ). I make two principal points in this dissent. First, Kelly is the law and that the Third Department violated Kelly in this case.1 Second, the doctrine surrounding Kelly is confusing and unfair, and that the legislature should fix it.
The text and history of the underlying statutory scheme, along with the traditional gloss we have given to its words, show why Officer Rizzo should have prevailed in this case.
It helps to recall the odd history and structure of the statute, Retirement and Social Security Law § 363. In 1984, the legislature worked a significant change to the RSSL's treatment of disabled police officers and firefighters (L 1984, ch 661, § 1, codified in Retirement and Social Security Law § 363–c ). As explained in the sponsor's memorandum for the 1984 legislation amending section 363, before the passage of that legislation, police officers and firefighters who suffered disabilities rendering them unable to perform their duties might be able to receive retirement benefits in one of two ways. So long as they had served for a sufficient number of years, they could retire with "ordinary disability retirement" benefits regardless of the cause of the disability. In the alternative, regardless of how long they had served, they could retire with "accidental disability retirement benefits," but would have to meet a "very stringent condition precedent that the incapacity to perform the duties of the position [was] the natural and proximate result of an accident sustained in such service" (Sponsor's Mem in Support of Legislation, A.B. 11304–A, Bill Jacket, L 1984, ch 661 at 9).
Noting that the "courts have continually ruled that exertional type injuries are not accidental injuries for the purposes of accidental disability benefits," the legislation created a "new disability retirement benefit" in which the ...
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