Witts v. DiNapoli

• Decision Date: 17 March 2016
• Citation: 27 N.Y.S.3d 298,137 A.D.3d 1456
• Parties: In the Matter of Stephen WITTS, Petitioner, v. Thomas P. DiNAPOLI, as Comptroller of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1456
27 N.Y.S.3d 298

In the Matter of Stephen WITTS, Petitioner,
v.
Thomas P. DiNAPOLI, as Comptroller of the State of New York, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 17, 2016.

27 N.Y.S.3d 299

Bartlett, McDonough & Monaghan, LLP, White Plains (Erin O'Connor of counsel), for petitioner.

27 N.Y.S.3d 300

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.

DEVINE, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.

Petitioner, a firefighter with the City of New Rochelle Fire Department since 1983, applied for accidental disability retirement benefits stemming from, as is relevant here, four incidents occurring on December 16, 1991, April 10, 2003, December 31, 2004 and September 2, 2009. Following a hearing, the Hearing Officer denied the application, concluding that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law § 363. Respondent adopted the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding.

For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 [2008] [internal quotation marks and citation omitted]; Matter of Schoales v. DiNapoli, 132 A.D.3d 1184, 1185, 18 N.Y.S.3d 765 [2015] ), and it must "not result from an activity undertaken in the performance of regular or routine employment duties" (Matter of Dicioccio v. DiNapoli, 124 A.D.3d 1170, 1171, 3 N.Y.S.3d 162 [2015] [internal quotation marks and citations omitted] ). Petitioner bears the burden of establishing that the event producing the injury was an accident, and respondent's determination will be upheld where it is supported by substantial...