Matter of Emerson v DiNapoli

Matter of Emerson v DiNapoli 2014 NY Slip Op 02126 Decided on March 27, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 27, 2014
517511

[*1]In the Matter of PATRICIA C. EMERSON, Petitioner,

v

THOMAS P. DiNAPOLI, as State Comptroller, et al., Respondents.

Calendar Date: February 13, 2014
Before: Peters, P.J., Stein, McCarthy and Egan Jr., JJ.


Pasternack Tilker Ziegler Walsh Stanton & Romano
LLP, Hicksville (Jordan A. Ziegler of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany
(William E. Storrs of counsel), for respondents.

MEMORANDUM AND JUDGMENT


Egan Jr., 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 Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a senior court officer, sustained injuries to her right hand, arm and shoulder in the process of restraining a criminal defendant who was being remanded for a probation violation. Following the denial of her application for accidental disability retirement benefits, petitioner requested a hearing and redetermination. A Hearing Officer subsequently determined that petitioner had not sustained her burden of proving her entitlement to benefits, and respondent Comptroller upheld that decision. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. An accident is defined as "a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties" (Matter of Kilbride v New York State Comptroller, 95 AD3d 1496, 1496 [2012], lv denied 19 NY3d 813 [2012] [internal quotation marks and citations [*2]omitted]; accord Matter of Rykala v New York State Comptroller, 92 AD3d 1077, 1077 [2012]). Here, petitioner acknowledged that her job duties included the physical restraint of unruly individuals, and it is undisputed that her injuries were sustained in carrying out such duties, as elucidated in the hearing testimony, the application for benefits and the injury report. Accordingly, despite the existence of evidence that could support a finding that petitioner was assaulted, substantial evidence supports the Comptroller's determination that petitioner's injuries occurred in the routine performance of her duties (see Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of Jarosz v DiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of Kilbride v New York State Comptroller, 95 AD3d at 1497; Matter of Wise v New York State Comptroller, 38 AD3d 1032, 1033-1034 [2007], lv denied 9 NY3d 811 [2007]).

Peters, P.J., Stein and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.