State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 6, 2014 518444
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In the Matter of RAYMOND J.
FULTON,
Petitioner,
v MEMORANDUM AND JUDGMENT
NEW YORK STATE COMPTROLLER
et al.,
Respondents.
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Calendar Date: September 11, 2014
Before: Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.
__________
Edelstein & Grossman, New York City (Jonathan I. Edelstein
of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.
__________
Lahtinen, 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 Comptroller which denied
petitioner's application for accidental disability retirement
benefits.
Petitioner, a police officer, was on patrol on July 21,
2008 when he was called to a location where two men were fighting
in the street. When he arrived at the scene, one man was fleeing
and the other was standing in the middle of the street. As
petitioner got out of his car, the man in the street seemed
incoherent, started to approach him and indicated that he had to
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talk to petitioner. Petitioner directed the man to step off the
side of the road to get him out of the path of fast moving
vehicles, a situation that petitioner described as dangerous.
During the process of attempting to get the man to a safe
location, the man proceeded to lunge at petitioner and a physical
altercation ensued resulting in injuries to petitioner's left
shoulder and neck. Petitioner filed an application for
accidental disability retirement benefits claiming that he was
assaulted (see Matter of Stefanelli, Mar. 11, 2002, Reg. No.
3344419-1, H.C. No. 01-0237). His application was denied.
Following a hearing, a Hearing Officer concluded that the denial
of benefits was proper because the incident did not constitute an
accident within the meaning of the Retirement and Social Security
Law. Respondent Comptroller upheld this determination and
petitioner commenced this CPLR article 78 proceeding challenging
it.
The primary issue before us is whether the July 21, 2008
incident was an accident within the meaning of the Retirement and
Social Security Law. Petitioner bears the burden of
demonstrating that his injuries were the result of an accident,
"meaning, that they were caused by a sudden and extraordinary
event that is unrelated to the ordinary risks of employment"
(Matter of Jarosz v DiNapoli, 95 AD3d 1500, 1500-1501 [2012],
[internal quotation marks and citations omitted]; see Matter of
Del Salto v DiNapoli, 115 AD3d 1147, 1148 [2014]).
Significantly, "the event must arise from risks that are not
inherent to petitioner's regular employment duties" (Matter of
Roberts v DiNapoli, 117 AD3d 1166, 1166 [2014]; see Matter of
Wise v New York State Comptroller, 38 AD3d 1032, 1033-1034
[2007], lv denied 9 NY3d 811 [2007]). Here, petitioner's regular
duties as a police officer included responding to a call that two
men were engaged in a street fight and attempting to remove one
of the men, who was "a little incoherent with alcohol," from the
roadway where his safety was threatened. The risks taken by
petitioner in performing his duty and being drawn into a physical
confrontation with this intoxicated person were an inherent part
of his duties. Consequently, we find that substantial evidence
supports the Comptroller's determination that the incident did
not qualify as an accident entitling petitioner to receive
accidental disability retirement benefits (see Matter of Roberts
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v DiNapoli, 117 AD3d at 1166-1167; Matter of Del Salto v
DiNapoli, 115 AD3d at 1148-1149; Matter of Jarosz v DiNapoli, 95
AD3d at 1501). Although it could be inferred from the evidence
that petitioner was assaulted during the physical confrontation,
this does not negate the Comptroller's finding that he was
injured as a result of physical contact inherent in his routine
job duties (see Matter of Rodriquez v DiNapoli, 110 AD3d 1125,
1127 [2013]; Matter of Welsh v New York State Comptroller, 67
AD3d 1167, 1169 [2009], lv denied 14 NY3d 706 [2010]; Matter of
Wise v New York State Comptroller, 38 AD3d at 1034). We have
considered petitioner's remaining contentions and find them to be
unavailing.
Peters, P.J., Stein, Garry and Devine, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court