Knight v. McGuire

Asch, J. (dissenting).

In my opinion, the judgment appealed from should be reversed. Appellant was on duty at Boulevard Hospital in Queens when a radio motor patrol car arrived to relieve him. At that time it was raining heavily, and as the appellant was about to get into the automobile, he lost his footing on the wet sidewalk. His leg slipped under the car. He fell backwards injuring his left elbow on the pavement. The line-of-duty injury report filed in connection with the accident stated in part: “Investigation reveals that due to rain condition the curb and sidewalk was wet and as PO Richard Knight opened the door of RMP 2165 he slipped on wet curb and fell backwards striking left elbow on pavement.” The report also indicates that the investigating supervisor stated that investigation of the accident did not reveal any neglect on the part of the appellant. Accordingly, line-of-duty designation for the incident was approved. It is beyond dispute that appellant was disabled. Indeed, the medical board found him to be disabled as a result of a service-connected incident, and it recommended him to be retired due to accident disability under section B1843.0 of the Administrative Code of the City of New York. Respondent board of trustees, however, rejected the recommendation of the medical board and denied the accident disability retirement. Significantly, respondent did not deny that the appellant was disabled as a natural and proximate result of this injury received in city service, nor did it deny a causal connection between appellant’s line-of-duty injury and the disability for which he was retired. Rather, respondent board of trustees concluded that appellant’s line-of-duty injury was not related to crime control. It was on this basis that respondent denied the accident disability retirement. Its only explanation for this conclusion was that what happened was an “incident * * * unrelated to crime control” *624and not a “stress situation.” Nowhere in the record does the respondent board of trustees define a “stress situation” other than with the observation that appellant was not “responding to any type of police call or in any kind of altercation.” If the respondent has concluded that an “accidental injury in city-service” under section B18-43.0 requires the presence of “an incident related to crime control”, “a stress situation”, “a response to a police call” or “an altercation,” not only has respondent failed to define its terms, but even more significantly, it has arbitrarily made an interpretation which is devoid of statutory foundation. Section B18-43.0, the statute in question, requires, in part, that a member be “physically or. mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service”. The statute does not support the restricted interpretation given to it by respondents. Special Term incorrectly approved the determination by the respondent board by substituting its own finding that the injury was not an accidental one. Judicial review of this determination should have been limited solely to the grounds invoked by the agency, i.e., the incident was unrelated to crime control (Matter of Montauk Improvement v Proccacino, 41 NY2d 913). This expressed reason by the board for its determination extended the meaning of the statutory language of section B18-43.0 to apply to situations not intended to be embraced within the statute (Matter of Jones v Berman, 37 NY2d 42). Although eligibility for accident disability retirement requires not merely that the disability be job related, but that it result from a job-related accident (see Manzolillo v New York City Employees’ Retirement System, 87 AD2d 791; Matter of Rinaldi v Board of Trustees of N. Y. City Employees’ Retirement System, 88 AD2d 870; cf. Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463), no case that I am aware of defines “job-related accident” in the highly constricted, almost punitive way, the board has in the instant case. Moreover, even if the respondent board of trustees had denied appellant’s application for an accident disability retirement pension on the grounds that “accident disability” as used in section B18-43.0 means “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (Johnson Corp. v Indemnity Ins. Co. of North Amer., 6 AD2d 97,100, affd 7 NY2d 222), the facts in the instant action establish that the appellant sustained injuries to his elbow which ultimately resulted in a permanent disability as a result of an accident which satisfies even the restricted definition used by the Court of Appeals (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II, 57 NY2d 1010). That appellant sustained an “accidental injury” within the meaning of section B18-43.0 is evidenced by the fact that he sustained a “sudden traumatic injury during a particular incident” (Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, supra). There is nothing in that section which requires anything more than an “accidental injury” under the circumstances as are herein presented. The police officer in the instant case was walking toward the police car. He slipped on a wet curb and as a result sustained the concededly permanent injury herein involved. It is difficult to accept the idea that the officer purposefully slipped or could anticipate what occurred and hence is not entitled to disability retirement within the Lichtenstein test. Lichtenstein cites Matter of Covel v New York State Employees’Retirement System (84 AD2d 902), with approval. The facts in Covel are only superficially similar to the instant matter. There the school custodian was injured as he slipped on a floor he was dusting. The Third Department held that the incident did not involve an “accident.” However, Covel can be distinguished on the grounds that there the custodian knew the risks involved in dusting the floors and that the injury was sustained as a *625result of the risk inherent in the task being performed. The custodian in Covel slipped on oil he had intentionally applied to the floor earlier and which he knew to be slippery. In the case before us, the police officer was simply getting into a police patrol car when he unexpectedly slipped in water which had accumulated from rain. Certainly, this should be seen as a “sudden, fortuitous mischance, out of the ordinary and injurious in impact.” In reality, the interpretation of the language of the Administrative Code by the board of trustees appears to be based more upon its interest in the fiscal integrity of the pension system rather than a “commonsense” interpretation of the word “accidental.” The interpretation of “accidental” by the board of trustees would justify what Socrates is reputed to have said: “words are more plastic than wax.” “Accidental,” whether we define it in colloquial terms or even apply a more formal dictionary definition, has been distorted to achieve a result which I do not believe the statutory language warrants. The memorandum for the list states the rule relating to accidental injury as being “¡Tjnjuries sustained during the performance of an employee’s regular duties resulting from risks inherent in the task being performed are not accidents within the ambit of the Administrative Code”. Applying the rule as thus enunciated would result in the anomalous and unfair consequence that a policeman, shot while pursuing an alleged perpetrator of a crime, would as a matter of law be excluded from an accidental disability retirement because his injuries were “sustained during the performance of an employee’s regular duties resulting from risks inherent in the task being performed”.