State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 31, 2014 517958
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In the Matter of DENNIS C.
BENNETT,
Petitioner,
v MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as
State Comptroller,
Respondent.
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Calendar Date: June 4, 2014
Before: Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.
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Raymond G. Lavallee, Esq., PC, Farmingdale (Rosanna A.
Franzi of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.
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Peters, P.J.
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 which denied petitioner's
application for accidental disability retirement benefits.
Petitioner, a member of the crime prevention unit of the
Nassau County Police Department, was conducting a late night
narcotics investigation in April 2010 when a suspect vehicle fled
from the location at issue. During the high-speed chase that
ensued, the suspect vehicle traversed a road divider, causing the
rear of the vehicle to raise up and slam onto the ground, and the
vehicle then crashed into a fence and came to rest in the
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roadway. The suspect then fled on foot and, after petitioner
stopped his vehicle, he alit and gave chase. Petitioner
testified that he caught the suspect and a scuffle ensued, during
which he felt his feet slide out from beneath him and he went
down to the ground. When emergency vehicles arrived and
illuminated the scene, petitioner observed that the roadway was
covered with a fresh coat of shiny liquid, which contained
footprints leading from his police vehicle to the site of the
altercation. As the result of his injuries, petitioner filed an
application for accidental disability retirement benefits, which
was ultimately denied by respondent based upon a determination
that petitioner had offered no evidence that he stepped into the
liquid or that it caused him to fall and, therefore, the April
2010 incident did not constitute an accident within the purview
of Retirement and Social Security Law § 363. Petitioner then
commenced this CPLR article 78 proceeding and we now confirm.
Petitioner bears the burden of proving entitlement to
accidental disability retirement benefits and a determination by
respondent will be upheld when supported by substantial evidence
(see Matter of Fiducia v DiNapoli, 111 AD3d 1018, 1018 [2013];
Matter of Carpenter v DiNapoli, 104 AD3d 1037, 1038 [2013]).
Entitlement to such benefits depends upon a demonstration that
the underlying incident was "a sudden, fortuitous mischance,
unexpected, out of the ordinary, and injurious in impact" (Matter
of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal
quotation marks and citations omitted]; see Matter of Rodriquez v
DiNapoli, 110 AD3d 1125, 1126 [2013]).
Initially, while respondent is entrusted with the authority
to resolve credibility issues (see Matter of Messina v New York
State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069
[2013], lv denied 21 NY3d 855 [2013]; Matter of Cooke v DiNapoli,
96 AD3d 1340, 1341 [2012]), we disagree with the determination
here that petitioner offered no evidence that he stepped in the
liquid. While there was evidence in the record that might
suggest that the liquid was not the cause of petitioner's fall,
he did testify that the footprints leading from his car to the
incident site made him realize that he had run through the liquid
and he later stated unequivocally that he slipped on the liquid.
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Nevertheless, the determination must be confirmed where the
injury was sustained during the performance of ordinary
employment duties and without the occurrence of an unexpected
event (see Matter of Pufahl v Murray, 111 AD3d 1050, 1051 [2013];
Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428 [2013]). Both
petitioner and his partner testified that chasing suspects was
within their job duties and that, following a vehicle accident,
there could be substances in the roadway. Accordingly, the
hazard was one that petitioner reasonably could have anticipated,
even if he did not see it until after his fall. We therefore
find no basis upon which to disturb respondent's determination
that petitioner did not establish his entitlement to accidental
disability retirement benefits (see Matter of Quartucio v
DiNapoli, 110 AD3d at 1337; Matter of Bleeker v New York State
Comptroller, 84 AD3d 1683, 1683-1684 [2011], lv denied 17 NY3d
709 [2011]).
Stein, Rose, Egan Jr. and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court