Knight v. McGuire

94 A.D.2d 623, 462 N.Y.S.2d 23, 1983 N.Y. App. Div. LEXIS 18029

Opinions

— Judgment, Supreme Court, New York County (Maresca, J.), entered January 20,1982, denying petitioner’s application for vacatur of a determination of respondents-respondents denying petitioner’s application for accidental disability retirement, and retiring him on ordinary disability, affirmed, without costs. The injury sustained by petitioner did not arise out of a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’” (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, quoting Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 AD2d 97,100). As that case holds, an injury which occurs without an unexpected event as a 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 within the meaning of section B18-43.0 of the Administrative Code of the City of New York. Slipping on a wet curb on a rainy day is not an accidental injury within this definition. Injuries sustained during the performance of an employee’s regular duties resulting from risks inherent in the task being performed are not accidents within the ambit of the Administrative Code (Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606; Matter of Menna v New York City Employees’ Retirement System, 91 AB2d 537). A wet pavement is no different than a slippery floor in terms of whether there was an accident within the meaning of the statute. The fact that the floor became slippery in the course of Covel’s employment was not dispositive in his case (Matter of Covelv New York State Employees’ Retirement System, supra). As Lichtenstein (supra, pp 1011-1012) notes, “not every line-of-duty injury will support an award of accidental disability retirement.” Concur — Sandler, J. P., Ross and Fein, JJ. Asch and Kassal, JJ., each dissent in a separate memorandum as follows: