New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

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Matter of Gerard O’Brien v New York State Comptroller

This Article 78 proceeding was brought about by petitioner, Gerard O’Brien, to review a determination of respondent Comptroller denying petitioner accidental disability retirement benefits. Petitioner was employed by the Port Authority of New York and New Jersey as a police officer. In June 2003, petitioner sustained a knee injury while on the job. Petitioner stepped backwards and caught his foot on a sewer grate. He was denied accidental disability retirement benefits because his incident was considered not an accident. Petitioner requested a redetermination and the Hearing Officer denied the petition on the same grounds. Petitioner then commenced this Article 78 appeal.

The burden of proof relies on the petitioner to prove that the injury was accidental. Petitioner testified to being aware of the sewer grates presence but that the grate had been covered by plywood and he did not know that on the day of the incident, the grate was uncovered. The Court thus confirmed the previous rulings that the incident was not an accident. The reasoning behind this decision was that since petitioner was aware of the sewer grate the hazard was therefore something petitioner “could have reasonably anticipated”.

Accordingly, the Court confirmed the determination, without costs, and dismissed the petition.