Hyde v. Levitt

Appellate Division of the Supreme Court of New York

Hyde v. Levitt

72 A.D.2d 623, 420 N.Y.S.2d 791, 1979 N.Y. App. Div. LEXIS 13756

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 11, 1979

StatusPublished

Cited by1 cases

This text of 72 A.D.2d 623 (Hyde v. Levitt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hyde v. Levitt, 72 A.D.2d 623, 420 N.Y.S.2d 791, 1979 N.Y. App. Div. LEXIS 13756 (N.Y. Ct. App. 1979).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller. It is undisputed that the petitioner in the ordinary course of his employment was engaged in lifting a bottle of water when it slipped from his grasp at about chest height. He grabbed the bottle as it fell and sustained sharp pain across his back. The respondent has found that the event described does not constitute an accident within the meaning of section 63 of the Retirement and Social Security Law and, therefore, the petitioner’s application for accidental disability retirement was denied. Upon this proceeding, the sole issue is whether or not the determination is supported by substantial evidence (Matter of Donohue v Levitt, 55 AD 2d 240). Upon this record, it is apparent that the incident occurred in the ordinary performance of the work and, while there is some element of accident in the slipping of the bottle, it cannot be said that the event was accidental in nature as a matter of law (see Matter of Selinger v Levitt, 65 AD2d 668). "The risk * * * was inherent in such activity.” (Matter of Tremblay v Levitt, 65 AD2d 901, 902.) Determination confirmed, and pe[624]*624tition dismissed, without costs. Mahoney, P.J., Sweeney, Staley, Jr., Main and Herlihy, JJ., concur.

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Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller. It is undisputed that the petitioner in the ordinary course of his employment was engaged in lifting a bottle of water when it slipped from his grasp at about chest height. He grabbed the bottle as it fell and sustained sharp pain across his back. The respondent has found that the event described does not constitute an accident within the meaning of section 63 of the Retirement and Social Security Law and, therefore, the petitioner’s application for accidental disability retirement was denied. Upon this proceeding, the sole issue is whether or not the determination is supported by substantial evidence (Matter of Donohue v Levitt, 55 AD 2d 240). Upon this record, it is apparent that the incident occurred in the ordinary performance of the work and, while there is some element of accident in the slipping of the bottle, it cannot be said that the event was accidental in nature as a matter of law (see Matter of Selinger v Levitt, 65 AD2d 668). "The risk * * * was inherent in such activity.” (Matter of Tremblay v Levitt, 65 AD2d 901, 902.) Determination confirmed, and pe[624]*624tition dismissed, without costs. Mahoney, P.J., Sweeney, Staley, Jr., Main and Herlihy, JJ., concur.

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Bluebook (online)

72 A.D.2d 623, 420 N.Y.S.2d 791, 1979 N.Y. App. Div. LEXIS 13756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyde-v-levitt-nyappdiv-1979.

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