Roach v. McCall

Appellate Division of the Supreme Court of New York

Roach v. McCall

251 A.D.2d 941, 674 N.Y.S.2d 875, 1998 N.Y. App. Div. LEXIS 7762

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

DecidedJune 25, 1998

StatusPublished

Cited by2 cases

This text of 251 A.D.2d 941 (Roach v. McCall) 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

Roach v. McCall, 251 A.D.2d 941, 674 N.Y.S.2d 875, 1998 N.Y. App. Div. LEXIS 7762 (N.Y. Ct. App. 1998).

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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 tow-truck operator employed by the Suffolk County Police Department, filed an application for accidental disability retirement benefits contending that he had sustained two injuries to his back. Specifically, petitioner alleged that he injured his back on September 12, 1992 when the impound yard gate that he was attempting to close became stuck and, again, on April 4, 1993 while pushing a disabled vehicle that was blocking his access to another vehicle. Respondent Comptroller denied petitioner’s subsequent application for ac[942]*942cidental disability retirement benefits upon the ground that he did not suffer an “accident” within the meaning of Retirement and Social Security Law § 605 (b) (3). We agree. An “accident” is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties (see, Matter of Talerico v McCall, 239 AD2d 863; Matter of Bergland v Regan, 199 AD2d 812). Here, the record reveals that petitioner regularly closed the impound yard gate in the normal course of his employment, and petitioner admitted that it was not unusual for the gate to become stuck. As to the April 1993 incident, although petitioner testified that he had not been called upon in the past to push one vehicle out of the way in order to gain access to another, he also readily admitted that “[w]hatever it took to get [a vehicle] was what [he] had to do”. In view of such testimony, we find that substantial evidence supports the determination that petitioner’s injuries did not constitute an accident (see, Matter of Butler v McCall, 247 AD2d 709; Matter of Woods v McCall, 240 AD2d 839, lv denied 90 NY2d 808; Matter of Malenda v Regan, 134 AD2d 808).

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

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—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 tow-truck operator employed by the Suffolk County Police Department, filed an application for accidental disability retirement benefits contending that he had sustained two injuries to his back. Specifically, petitioner alleged that he injured his back on September 12, 1992 when the impound yard gate that he was attempting to close became stuck and, again, on April 4, 1993 while pushing a disabled vehicle that was blocking his access to another vehicle. Respondent Comptroller denied petitioner’s subsequent application for ac[942]*942cidental disability retirement benefits upon the ground that he did not suffer an “accident” within the meaning of Retirement and Social Security Law § 605 (b) (3). We agree. An “accident” is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties (see, Matter of Talerico v McCall, 239 AD2d 863; Matter of Bergland v Regan, 199 AD2d 812). Here, the record reveals that petitioner regularly closed the impound yard gate in the normal course of his employment, and petitioner admitted that it was not unusual for the gate to become stuck. As to the April 1993 incident, although petitioner testified that he had not been called upon in the past to push one vehicle out of the way in order to gain access to another, he also readily admitted that “[w]hatever it took to get [a vehicle] was what [he] had to do”. In view of such testimony, we find that substantial evidence supports the determination that petitioner’s injuries did not constitute an accident (see, Matter of Butler v McCall, 247 AD2d 709; Matter of Woods v McCall, 240 AD2d 839, lv denied 90 NY2d 808; Matter of Malenda v Regan, 134 AD2d 808).

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

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Bluebook (online)

251 A.D.2d 941, 674 N.Y.S.2d 875, 1998 N.Y. App. Div. LEXIS 7762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roach-v-mccall-nyappdiv-1998.

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