Matter of Crews v New York City Employees' Retirement Sys.

[*1] Matter of Crews v New York City Employees' Retirement Sys. 2023 NY Slip Op 50828(U) Decided on July 26, 2023 Supreme Court, Kings County Frias-Colón, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 26, 2023
Supreme Court, Kings County

In the Matter of the Application of Jeffrey Crews, Petitioner,

against

The New York City Employees' Retirement System, the Board of Trustees of the New York City Employees' Retirement System, the Medical Board of the New York City Employees' Retirement System, and the City of New York, Respondents.



Index No. 528528/2022


For Plaintiff Jeffrey Crews:
Philip H. Seelig of Seelig Law Offices, 299 Broadway Suite 1600, NY, NY 10007
212-239-1061 phil@pseeliglaw.com

For Defendants NYC et al.:
Aimee K. Lulich of NYC Law Department, 100 Church St., NY, NY 10007
212-356-2369 alulich@law.nyc.gov Patria Frias-Col³n, J.

The following e-filed papers read herein: NYSCEF Doc Nos.:

Order to Show Cause/Petition/Cross Motion and Affidavits 1-8
Opposing Affidavits 14-26
Affidavits/Affirmations in Reply 28

Upon the foregoing papers and oral argument on May 31, 2023, Petitioner Jeffrey Crews (Petitioner) moves for a Judgment and Order, pursuant to Article 78 of the Civil Practice Law and Rules (CPLR). Petitioner seeks: (1) review and annulment of the action of Respondents the New York City Employees' Retirement System (NYCERS), the Board of Trustees of NYCERS [*2](NYCERS Trustees), NYCERS Medicalof NYCERS (NYCERS Medical), and the City of New York (City) (collectively, Respondents) in denying the Petitioner an Accidental Disability Retirement (ADR) pursuant to New York Retirement and Social Security Law (RSSL) § 605-b, and declaring said action to be arbitrary, capricious, unreasonable and unlawful; (2) an Order that Respondents retire Petitioner with an ADR pension; or, in the alternative, (3) an Order remanding the matter for Respondents to review Petitioner's application for an ADR benefit.

Background and Procedural History

Petitioner was appointed to the uniformed force of the New York City Department of Sanitation (DOS) on September 12, 2011, and served continuously as a member of the DOS until he was medically separated from service. Prior to his appointment as a sanitation worker, he passed both physical and psychological examinations administered by the DOS that demonstrated that he was physically and psychologically fit to perform the full duties of a sanitation worker. On December 19, 2017, Petitioner was fueling up the sanitation truck he was using. As he turned away from the fuel pump toward the cab of the truck, Petitioner tripped and fell on an uneven and raised bump in the pavement. He tried to get up from the ground and fell and hit the pavement again. Petitioner was not looking at the defect as his head was turned the other way, and he stated that he was not aware of it as he had never seen this defect before. Petitioner sustained various injuries including a left tibial shaft fracture which required two surgeries and he continues to experience pain in his left lower extremity. He did not return to work after the incident. A line of duty injury report was prepared and the DOS investigating officer indicated that "the type of unsafe condition was a C9, which means that there was unsafe footing due to grease, ice, water, debris, obstacle, pot hole etc....Additionally, it was indicated that corrective action was taken by putting a work order in to fix the defect" (NYSCEF Doc No. 8 at 7).

On July 19, 2019, the DOS filed an application on Petitioner's behalf for ADR pursuant to RSSL § 605-b [FN1] related to the aforementioned incident. On November 6, 2020, Petitioner appeared before the NYCERS Medical Board for a virtual, rather than an in-person, interview in light of the COVID-19 restrictions. NYCERS Medical reviewed reports from Coney Island Hospital where Petitioner was treated following the incident, as well as documentation from his treating orthopedists, physical therapy records, MRIs and the operative report from the surgery to repair his tibial fracture. In a report dated the same date as the virtual interview (November 6, 2020), NYCERS Medical stated that it was deferring its final determination in order to examine the Petitioner in person. In addition, NYCERS Medical Board found "the incident of December 19, 2017 not to be an accident."

On October 7, 2021, Petitioner appeared before NYCERS Medical for an in-person [*3]interview and examination. The Medical Board again reviewed the medical documentation submitted by Petitioner. Based upon its review, NYCERS Medical determined that the "documentary and clinical evidence substantiated that Jeffrey Crews is disabled from performing the duties of Sanitation Worker with the Department of Sanitation due to status post open reduction and internal fixation of left distal tibia with residuals." Additionally, NYCERS Medical determined that his disability was causally related to the line of duty incident that occurred on December 19, 2017. However, NYCERS Medical continued to hold that this incident did not qualify as an accident as there was no sudden fortuitous mischance that was unexpected or out of the ordinary. Rather, NYCERS Medical stated that Petitioner "should have paid attention to the uneven surface." By letter dated November 26, 2021, Petitioner was notified that NYCERS Medical recommended that his application for ADR be denied.

On June 9, 2022, Petitioner and his attorney appeared by teleconference before the NYCERS Board of Trustees to appeal NYCERS Medical Board's determination. Prior to this meeting, Petitioner submitted a Memorandum of Law in support of his appeal which included pictures of the area in which Petitioner fell. Petitioner was questioned by members of the NYCERS Trustees regarding the incident and Petitioner stated he never noticed the uneven pavement/protrusion which was approximately 4-5 inches higher that the area around it prior to the incident. He noted that it was camouflaged and looked like the area surrounding it. By letter dated June 10, 2022, Petitioner was informed that his application for ADR was denied.

By Verified Petition dated September 29, 2022, Petitioner commenced the instant Article 78 proceeding seeking: to annul NYCERS Trustees' June 9, 2022 determination and award him disability retirement under RSSL § 507-b; or that the matter be remanded for reconsideration. On or about May 10, 2023, Respondents submitted a verified answer.

Petitioner argues he is entitled to accidental disability retirement benefits under RSSL § 507-b as he sustained disabling injuries as a result of an accident incurred in the line of duty. He maintains that tripping on an unexpected and unseen hazard was out of the ordinary and unexpected and not an inherent risk of employment as a sanitation worker. Petitioner contends he unknowingly tripped and fell due to a hazardous condition he was not aware of, which was a fortuitous mischance that occurred suddenly and unexpectedly. He contends the determination by NYCERS Medical and Trustees Boards that this was not an accident was arbitrary, capricious and contrary to the applicable law. Specifically, Petitioner contends that the definition of what constitutes an accident is well-settled and has been deemed to be a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact. Petitioner stated that he regularly filled up his truck at this gas pump and never noticed this defect. Specifically, when speaking before the NYCERS Trustees, Petitioner indicated that the uneven and raised broken up pavement "looked just like every other area of the yard, just like regular blacktop. It was camouflaged; I couldn't see it." (NYSCEF Doc No. 5 at 23).

Petitioner points to several cases in support of his argument that his injuries were the result of an accident and not due to an ordinary risk of his employment. In Lichtenstein v Bd. of Trs., 57 NY2d 1010, 1012 (1982), the Court of Appeals held that "although the term 'accident' is not specifically defined by statute, we adopt the commonsense definition of a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'" (quoting Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 AD2d 97, 100, affd 7 NY2d 222 [1958]; see Kenny v DiNapoli, 11 NY3d 873, 874 [2008]). Petitioner further notes that in McCambridge v McGuire, 62 NY2d 563, 568 (1984), the Court of Appeals determined that the focus should not be on the [*4]job assignment of the injured Petitioner but rather whether there was a precipitating cause of the injury that was not a risk inherent in the work being performed. Petitioner next points to the Second Department's recent holding in Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d 841, 842-843 (2020), which involved a DOS Deputy Chief who sustained on the job injuries after he tripped and fell as a result of stepping on a loose and broken sidewalk outside a refuse-strewn lot he was photographing. The Court held that this "was not a risk of his ordinary employment duties, but rather a sudden, fortuitous, and unexpected precipitating event."

Moreover, Petitioner argues the NYCERS Trustees' assertion that he should have seen this defect or been aware of it because he pumped gas in that area before is based purely on conjecture and speculation. In this regard, he contends a sanitation worker is not under a duty to know or be expected to know of every sidewalk defect in New York City. In support of this contention, Petitioner points to the Court's holding in Matter of Cuccia v New York Employees Retirement System, 62 Misc 3d 1224(A); 2019 NY Slip Op 50248 (U) (Kings Cty. Sup. Ct), which involved a sanitation worker who was injured as a result of getting his foot stuck in an unseen sidewalk crack while collecting garbage. In Cuccia, the judge held that this constituted an accident as it was not an expected risk of his employment as a sanitation worker and that the evidence demonstrated that he was not aware of the crack on the sidewalk prior to his fall. That Court further held that the NYCERS Trustees failed to establish that the crack was sufficiently visible to render the fall as occurring in the ordinary course of duty. Based upon the foregoing, Petitioner avers that Respondents' determination denying him ADR benefits was arbitrary and capricious and should be annulled.

In opposition, Respondents argue that the determination to deny Petitioner's ADR application was rational, reasonable and supported by substantial evidence. Respondents assert that, while it is undisputed that Petitioner is disabled from performing his full duties as a result of the injuries he sustained on the job on December 19, 2017, Petitioner failed to establish the disabling incident was an accident. They further contend that the routine nature of the task Petitioner was performing, refueling his truck, along with his familiarity with the location, demonstrate credible evidence that his fall was not the result of sudden, out of the ordinary mischance. Respondents also rely on a discussion among some of the NYCERS Trustees regarding whether uneven, unlevel asphalt is an ordinary condition confronting sanitation workers. Thus, Respondents argue that its determination was based on reasonable consideration of all the evidence and not arbitrary or capricious.

Discussion

This Court is limited by CPLR article 78 to a review of the record before Respondent and to the question of whether its determination was arbitrary and capricious based upon that record (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 761 [1996]; Matter of Boyd v New York City Employees' Retirement Sys., 202 AD3d 1082, 1083 [2d Dept 2022]; Matter of Gray v New York State Div. of Hous. & Community Renewal, 177 AD3d 738,740 [2d Dept 2019]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (see Matter of Pell v Board of Educ., 34 NY2d 222, 231 [1974]). If a rational basis exists for its determination, the decision of the administrative body must be sustained (see Matter of Pell, 34 NY2d at 230; Matter of Clark v New York State Div. of [*5]Hous. & Community Renewal, 193 AD3d 726, 727 [2d Dept 2021]; Matter of Lucas v Board of Educ. of the E. Ramapo Cent. Sch. Dist., 188 AD3d 1065, 1067 [2d Dept 2020]). A court cannot substitute its judgment for that of the agency so long as the agency's decision is rationally based on the record (see Matter of Borenstein, 88 NY2d at 761; Matter of Clarke v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 46 AD3d 559, 560 [2d Dept 2007]; Matter of Vastola v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 37 AD3d 478, 478 [2d Dept 2007]; Matter of Santoro v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 217 AD2d 660, 660 [2d Dept 1995]).

The award of accident disability retirement benefits to a NYCERS applicant under RSSL § 507-b is a multi-step process. First, after conducting its own medical examination of the applicant and considering the evidence submitted in support of the claimed injuries, NYCERS Medical must certify whether the applicant is actually "physically or mentally incapacitated for the performance of city-service" (see Borenstein, 88 NY2d at 760 [1996]; Administrative Code § 13-168 [a]). Next, if NYCERS Medical determines that the applicant is disabled, it must then make a recommendation to the NYCERS Trustees as to whether the disability was "a natural and proximate result of an accidental injury received in such city-service" (Id.). "However, while the Board of Trustees is 'bound by the medical board's determination of disability, it is not bound by the medical board's determination that said disability resulted from a service-related accident. The function and duty of determining the 'circumstances' of the disqualification...is conferred upon the board of trustees'" (Matter of Smith v City of New York, 208 AD3d 1335, 1337 [2d Dept 2022], quoting Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 60 NY2d 347, 351 [1983]).

The "Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence" (Borenstein, at 761). "Substantial evidence has been construed in disability cases, as requiring some credible evidence" (Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d 882, 883 [2d Dept 2022]; see Matter of Borenstein, 88 NY2d at 760; Matter of Boyd, 202 AD3d at 1083; Matter of Gibbs v New York City Employees' Retirement Sys., 161 AD3d 980, 981 [2d Dept 2018]; Matter of Hernandez v New York City Employees' Retirement Sys., 148 AD3d 706, 707 [2d Dept 2017]). "Credible evidence has been described as evidence that proceeds from a credible source, which reasonably tends to support the proposition for which it is offered" (Id.; see Matter of Sorenson v Cassano, 117 AD3d 1069, 1070 [2d Dept 2014]).

Here, NYCERS Medical has determined that the evidence demonstrates that Petitioner is disabled from performing the duties of a sanitation worker and that the disabling injuries are causally related to the incident which occurred on December 19, 2017. However, NYCERS Medical determined that this incident did not qualify as an accident, finding that there was no sudden fortuitous mischance that was unexpected or out of the ordinary. The NYCERS Trustees adopted NYCERS Medical's recommendation that Petitioner's ADR application be denied.

Contrary to Respondents' contention, the Court finds that tripping and falling over uneven, broken pavement while filling a sanitation truck with fuel is not an expected risk of Petitioner's employment as a sanitation worker. Here, Petitioner stated he had not seen this condition prior to his accident even though he was at this location several times a week. The Court finds that Respondents' determination that it was not an accident and the Medical Board's contention that Petitioner "should have paid attention to the uneven surface" to be arbitrary and [*6]capricious and not based upon substantial evidence (see Matter of Bodenmiller v DiNapoli, 215 AD3d 96, 101 [3d Dept 2023], quoting, Matter of Stancarone v DiNapoli, 161 AD3d 144, 149 [3d Dept 2018][holding that "[t]o deny benefits on the ground that the hazard could have been reasonably anticipated, such a finding must be supported by the record and not rest merely upon speculation...for an event to be expected, the record must contain specific information from which it could be found that a person in the Petitioner's position and location could or should have reasonably anticipated the hazard"].

Petitioner's fall on the uneven asphalt was a sudden, unexpected mischance which was the precipitating cause of his injury and was not the result of an ordinary risk of his employment as a sanitation worker (see Lichtenstein, 57 NY2d at 1012; McCambridge, 62 NY2d at 568; Matter of Lanni, 189 AD3d at 842-843; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549 [2008]; Matter of Cuccia, 62 Misc 3d 1224[A]). Accordingly, Respondents' determination that the incident that occurred on December 19, 2017, was not an accident and to deny the Petitioner ADR benefits pursuant to RSSL § 605-b, was not based on substantial evidence as it was not supported by adequate proof demonstrating that the uneven asphalt was sufficiently visible and constituted an ordinary risk of Petitioner's employment.

Conclusion

Based on the foregoing, it is hereby

ORDERED that Petitioner's request for an order annulling Respondents' determination denying his application for accidental disability retirement, pursuant to RSSL § 605-b, is GRANTED; and it is further

ORDERED that Petitioner's request for an award of a RSSL § 605-b accidental disability retirement, as a matter of law, is DENIED; and it is further

ORDERED that Petitioner's application for an order directing and ordering Respondents by way of remand to review the Petitioner's application for accidental disability retirement benefits consistent with this court's decision is GRANTED.

The foregoing constitutes the decision and order of the court.

DATE: July 26, 2023
Brooklyn, New York
Hon. Patria Frias-Col³n, J.S.C. Footnotes

Footnote 1:RSSL § 605-b provides that "[a]New York city uniformed sanitation member who, on or after the effective date of this section, is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service while actually a member of NYCERS shall be retired for accidental disability. Such retirement shall be effective as of the date approved by the board of trustees of NYCERS.