State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 13, 2014 518635
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In the Matter of KIMBERLY A.
YURKO,
Petitioner,
v MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as
State Comptroller,
Respondent.
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Calendar Date: October 7, 2014
Before: Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.
__________
Bartlett, McDonough & Monaghan, LLP, White Plains,
(Patricia D'Alvia of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.
__________
Stein, 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 police officer, was injured on a morning in
May 2007 when, upon arriving at a scene to assist with a robbery
suspect who had been apprehended, she stepped out of her police
car into a pothole and twisted her left ankle. Petitioner
thereafter applied for accidental disability retirement benefits,
which were denied on the ground that the incident was not an
accident within the meaning of Retirement and Social Security Law
-2- 518635
§ 363. Following a hearing and redetermination, a Hearing
Officer denied the application, as relevant here, on the same
ground, and respondent upheld that determination. Petitioner
then commenced this CPLR article 78 proceeding.
We confirm. Petitioner bore the burden of demonstrating
her entitlement to accidental disability retirement benefits and
respondent's determination must be upheld if supported by
substantial evidence (see Matter of Bennett v DiNapoli, 119 AD3d
1310, 1310 [2014]; Matter of DiGiacomo v DiNapoli, 115 AD3d 1138,
1139 [2014]). Entitlement to benefits depends upon a showing
that the precipitating incident was "a sudden, fortuitous
mischance, unexpected, out of the ordinary, and injurious in
impact" (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008]
[internal quotation marks and citation omitted]; accord Matter of
Cavallo v DiNapoli, 117 AD3d 1366, 1367 [2014]). Credibility
issues, including the veracity of sworn testimony, are the
province of respondent to resolve (see Matter of Bennett v
DiNapoli, 119 AD3d at 1310-1311; Matter of Messina v New York
State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069
[2013], lv denied 21 NY3d 855 [2013]).
Here, petitioner testified that the pothole into which she
stepped was approximately two feet by two feet and the accident
reports contained that same description. Respondent found that,
while petitioner testified that she glanced at the road before
alighting from her vehicle and did not see the pothole, such
testimony was not credible given the size of the hazard. Because
the pothole was a condition that was readily observable and,
therefore, could have been reasonably anticipated, respondent's
determination is supported by substantial evidence (see Matter of
DiGiacomo v DiNapoli, 115 AD3d at 1139; Matter of Madaffari v
DiNapoli, 104 AD3d 1047, 1047-1048 [2013]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.
-3- 518635
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court