O'Donnell v. New York State & Local Retirement Systems

249 A.D.2d 607, 670 N.Y.S.2d 631, 1998 N.Y. App. Div. LEXIS 3574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 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 Comptroller which denied petitioner’s application for accidental disability retirement benefits.

Petitioner, a retired Lieutenant in the City of Buffalo Fire Department, filed for accidental disability retirement benefits in June 1994. Petitioner alleged that he had sustained a permanent disability to his shoulder as the result of two on-the-job accidents. The first injury occurred on November 9, 1986, during a fire at which petitioner fell or tripped into a hole on a torn-up sidewalk. The second injury occurred on December 26, 1990, when petitioner slipped on ice at the scene of a fire while he was assisting other firefighters in returning a hose to the company’s pumper. Following a hearing, the application was disapproved upon a finding that neither incident constituted an “accident” within the meaning of Retirement and Social Security Law § 363. Substantial evidence supports the conclusion that petitioner’s injuries were the result of an ordinary misstep and a risk inherent in the duties of a firefighter and did not constitute an accident within the meaning of the Retirement and Social Security Law (see, Matter of Seim v Regan, 191 AD2d 931). Consequently, the determination denying petitioner’s application for accidental disability retirement benefits will not be disturbed (see, Matter of Finnegan v Regan, 116 AD2d 878, 879).

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