Dooley v. McCall

252 A.D.2d 724, 675 N.Y.S.2d 396, 1998 N.Y. App. Div. LEXIS 8191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1998
• Status: Published

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 which denied petitioner’s application for accidental disability retirement benefits.

Petitioner, a substitute groundskeeper for a public school district, was operating a leaf blower on a grassy area adjacent to a school parking lot when he lost his balance and fell off the parking lot curb. Respondent determined that petitioner did not suffer an “accident” within the meaning of the Retirement and Social Security Law and, accordingly, denied his application for accidental disability retirement benefits. We confirm. An “accident” is a sudden and extraordinary event that does not result from an activity performed in the course of ordinary employment duties (see, Matter of Talerico v McCall, 239 AD2d 863). Here, it is undisputed that petitioner was performing ordinary employment activites at the time of his fall. In view of this, as well as petitioner’s failure to establish that his fall was occasioned by anything other than his own misstep, we find no reason to disturb respondent’s finding that petitioner did not suffer an “accident” (see, Matter of Gallello v McCall, 247 AD2d 693; Matter of Minchak v McCall, 246 AD2d 952).

Mikoll, J. P., Crew III, White, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.