Matter of Gakhal v. Kelly

135 A.D.3d 406, 21 N.Y.S.3d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 2016
• Docket: 16051 113428/11
• Status: Published

Opinions

Order, Supreme Court, New York County (Paul Wooten, J.), entered April 16, 2014, which denied the petition in this CPLR article 78 proceeding to annul respondents’ determination, dated August 11, 2011, denying petitioner accidental disability retirement (ADR) benefits, reversed, on the law, without costs, the petition granted, and the matter remanded to respondents for a new determination consistent herewith.

An accident is defined as 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 [1982] [internal quotation marks omitted]). Here, on the first day of training, petitioner lost control of a scooter, which accelerated to 40 miles per hour, and crashed into a metal barrier, causing the barrier and scooter to fall on top of her. The commanding officer of the training unit characterized the incident as “unexpected.” While injuries sustained during routine training exercises may not qualify for ADR benefits (see Matter of Becker v Ward, 169 AD2d 453 [1st Dept 1991] ), here, the loss of control coupled with the scooter’s acceleration, appears to have been sudden and out of the ordinary (see Matter of Starnella v Bratton, 92 NY2d 836, 839 [1998]; Matter of Flannelly v Board of Trustees of N.Y. City Police Pension Fund, 278 AD2d 113 [1st Dept 2000] [officer’s trip and fall over a tangle of television and VCR wires in police locker room, while performing routine security inspection, constituted a service-related accident as a matter of law]). Concur — Acosta, Richter and Manzanet-Daniels, JJ.