Claim of Deleo v. McCall

251 A.D.2d 739, 673 N.Y.S.2d 790, 1998 N.Y. App. Div. LEXIS 6478

Opinion

—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.

Substantial evidence supports the determination of respondent Comptroller which denied petitioner’s application for accidental disability retirement benefits. Petitioner, a labor foreman for the Town of Hempstead, Nassau County, injured his left knee and back when in the course of exiting a truck he stepped on its running board which allegedly dropped four to five inches, causing him to fall. Petitioner testified that the running board had returned to its normal position after he fell but that he noticed that one of its screws was “a little loose”. The workers’ compensation report, however, indicated that petitioner slipped on the running board and made no mention that it sagged or was broken. The inconsistencies between this report and petitioner’s testimony raised questions of credibility which the Hearing Officer was free to resolve against petitioner (see, Matter of Smith v McCall, 228 AD2d 857, lv denied 89 NY2d 805; Matter of Farruggio v McCall, 222 AD2d 925, 926). The determination finding that the incident was the result of petitioner’s own misstep and did not constitute an “accident” within the meaning of Retirement and Social Security Law § 63 is, accordingly, confirmed.

Mikoll, J. P., Mercure, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.