Matter of Kenny v DiNapoli

Matter of Kenny v DiNapoli 2008 NY Slip Op 09857 [11 NY3d 873] December 17, 2008 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 4, 2009

[*1] In the Matter of Paul G. Kenny, Appellant,
v
Thomas P. DiNapoli, as New York State Comptroller, Respondent.

Decided December 17, 2008

Matter of Kenny v DiNapoli, 50 AD3d 1445, affirmed.

APPEARANCES OF COUNSEL

Annette G. Hasapidis, South Salem, for appellant.

Andrew M. Cuomo, Attorney General, Albany (William E. Storrs, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for respondent.

{**11 NY3d at 874} OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

In the context of accidental disability retirement benefits, we have defined an accident as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and we have indicated that "an injury which occurs without an unexpected event as the [*2]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 of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). In this case, the Comptroller denied the ap{**11 NY3d at 875}plication for accidental disability retirement benefits because petitioner, who slipped on a wet ramp while exiting a restaurant, knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred. In other words, the Comptroller was not persuaded that the incident involved an "unexpected event." Because the Comptroller's conclusion is supported by substantial evidence in the record, the determination was properly confirmed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment affirmed, with costs, in a memorandum.