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

Matter of Charles M. Hulse v Thomas DiNapoli, as State Comptroller

In 2001, petitioner, a 20-year old police officer for the Town of Ramapo Police Department, injured his back while lifting a large person to perform CPR. Petitioner was out of work for a month following this incident due to a herniated lumbar disc. In 2003, petitioner injured his shoulder while engaged in a training program for bike patrol. Petitioner was participating in an exercise in proper technique for avoiding injury when falling off a bicycle. Petitioner was unable to return to full duty due to this injury and was only able to return to work part time in a light duty capacity.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

Since an accident in this context must be the result of a completely unforseeable event during the performance on routine duties, petitioner’s shoulder injury would not fall under this definition. Petitioner was participating in a training exercise that was part of his ordinary duties that involved risks and the manner in which he was injured was not unexpected or unforeseeable. Since substantial evidence exists to support respondent’s determination, the Court will not disturb it.

In regards to petitioner’s application to performance of duty retirement benefits for both injuries, petitioner failed to prove that he was permanently disabled from the performance of his duties. Though petitioner’s doctor concluded that his prognosis was “poor” for a full recovery from his shoulder injury, the respondent’s doctors provided evidence that a reasonably safe surgical procedure would relieve his pain and restore full function to his shoulder. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rationally based on the examination of petitioner, the Court agreed with respondent’s decision.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petitioner.

Read more about this Article 78 disability retirement benefits case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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In the following cases, the petitioners commenced Article 78 appeals to review the determination of respondent Comptroller denying their application for accidental disability retirement benefits. Each petitioner applied for accidental disability retirement benefits following their accidents and was denied. They next requested a redetermination and hearing which, in all instances, resulted in the Hearing Officer recommending the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced. In each case, the Supreme Court ruled against the petitioners, confirming the decision of the Comptroller and dismissing the petitions.

In order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld.

Bruno Piccinini v Comptroller of the State of New York

Petitioner, a security service assistant for the State University of New York Police Department, was injured when he tripped on an uneven section of the sidewalk while performing a routine patrol. Since petitioner admitted to patrolling the sector where the accident occurred on a regular basis and to being “very familiar” with the sidewalks, the Comptroller’s determination is supported by adequate evidence.

Read full decision here.

Paul Grutzner v Deputy Comptroller of the State of New York

Petitioner, a retired police officer of 40 years, submitted an application for accidental disability retirement benefits asserting permanent disability due to work-related injuries sustained in 1963, 1982, and 1986 and was denied. Petitioner testified to performing normal work duties of a police officer when each of the incidents occurred. In 1963, petitioner was attempting to climb a stairwell with missing steps while investigating a possible burglary when he fell. He was aware that the steps were damaged and therefore the fall was the result of his own misstep. In 1982, petitioner was riding a motorized dirt bike as part of a security detail when the bike “kicked-out” while descending a hill causing him to be injured. Petitioner was an accomplished motorcycle rider and admitted to riding down the same hill three times that day. Therefore, the incident resulted from an ordinary work related duty. In 1986, petitioner was injured while attempting to kick open a locked door to execute an arrest warrant. He attested to having done the same activity 150-200 times before indicating that the incident was not sudden and unexpected.

Read full decision here.

Michael Lorenzo v Comptroller of the State of New York

Petitioner, a detective employed by the City of Yonkers Police Department, injured his neck while exiting a police car in 2003. Petitioner claimed his disability was due to two earlier incidents, in 1991 and 1992, in addition to the accident in 2003. In 2003, the petitioner parked his unmarked car too closely to the adjacent car and hit his head while trying to get out of the car. Petitioner testified that “go[ing] out and arrest[ing] bad guys” were activities that would require him to enter an exit his police vehicle supporting the Comptroller’s assertion that the event precipitating petitioner’s injury was a inherent risk in the performance of his routine duties. Petitioner failed to establish that his neck injury was caused by the incidences in 1991 and 1992.

Read full decision here.

Martha DeLaCruz v Comptroller of the State of New York

Petitioner, a criminal investigator for the Westchester County District Attorney’s office, was injured when she fell during a training program in dignitary protection. Petitioner was newly assigned to the position of driver and bodyguard for the District Attorney and was injured completing a training exercise in which she had been previously instructed on how to act during it. Therefore, the incident in question resulted from part of petitioner’s ordinary job duties and was not an accident according to the meaning of the Retirement and Social Security Law.

Read full decision here.

Kenneth Rolon v Comptroller of the State of New York

Petitioner, a police officer employed by the City of Newburgh Police Department, sustained a back injury while changing a flat tire on his patrol car. Petitioner testified that he had never changed a flat tire before and usually a mechanic would be dispatched to do this task. In this case however, petitioner’s watch commander directed him to change the tire because a mechanic was unavailable and part of petitioner’s duties included following the orders of his watch commander. Therefore, substantial evidence supports the Comptroller’s determination that petitioner was injured while performing regular employment duties.

Read full decision here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of John Welsh v New York State Comptroller

Petitioner commenced this Article 78 appeal to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner, a Suffolk County police officer, was injured by an emotionally disturbed man whom he was escorting to a hospital psych ward. Following the attack, petitioner applied for accidental disability retirement benefits was denied and was denied. He then requested a hearing which resulted in the Hearing Officer recommended the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced.

Petitioner was granted performance of duty disability retirement benefits but in order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld. Since the petitioner had engaged in similar escort duties in the past which would indicate possible danger and the fact that injury by physical contact is inherent in the routine performance of petitioner’s duties, the Comptroller’s determination is supported by adequate evidence.

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

Read more about this Article 78 Accidental Disability Retirement Benefits appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Theodore Tomita v Thomas P. DiNapoli, as Comptroller of the State of New York

Petitioner brought about this Article 78 appeal to review a determination denying his application for accidental disability benefits. Petitioner was a police lieutenant employed by the City of Newburgh Police Department in Orange County. He tripped on a curb after working an overnight shift. Petitioner then filed for accidental disability benefits and was denied. He then requested a redetermination and a hearing. At the hearing, the Hearing Officer ruled in favor of Petitioner and determined that the incident qualified as an accident within the meaning of Retirement and Social Security Law §363. The Respondent then appealed the decision and it was reversed which led to Petitioner commencing this Article 78 appeal.

The Court notes that an accident within the meaning of Retirement and Social Security Law §363 is unexpected and not as a result of an activity performed during normal work duties. The burden of proof is on the Petitioner and since Petitioner admitted to being familiar with the parking lot and that the streetlights had been off other times, he could have reasonably anticipated the hazard. Therefore, Petitioner was injured as a result of his own misstep and not eligible for accidental disability benefits.

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

Read more about this Article 78 accidental disability retirement benefits case.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Paul A. Stymiloski v. Thomas DiNapoli, as Comptroller of the State of New York

This Article 78 proceeding was commenced to review a determination of respondent denying petitioner’s application for accidental disability retirement benefits. Petitioner, Paul Stymiloski, was a police officer in the Village of Ossining. In December of 2005, he was engaged in a routine patrol when he noticed a vehicle parked by a 24-hour pharmacy was on fire. He radioed for assistance and then, with the help of the car’s owner, pushed the car away from the store’s entrance to minimize the risk of the fire spreading. After the fire personnel arrived, petitioner and two fire fighters pushed the car even further away. In the process of doing this, petitioner slipped and fell on ice that formed from water the fire department had sprayed to put out the fire. Petitioner sustained a shoulder injury and filed for accidental disability and performance of duty retirement benefits. He was awarded the performance of duty benefits but denied the accidental disability retirement benefits. He then requested a redetermination but the Hearing Officer upheld the decision prompting this Article 78 appeal.

The Supreme Court agreed with the Hearing Officer’s determination. Since petitioner sustained his injury while performing “ordinary employment duties” as a result of “an unexpected or foreseeable event” it would not merit an award of benefits based on the accidental disability provision.

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

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Patricia Lewis v New York City Police Department

Petitioner, Patricia Lewis, a retired New York City police detective, commenced this Article 78 appeal to annul the denial of her application for accidental disability retirement (ADR) and to direct respondents to retire her with a line of duty ADR allowance retroactive to the date of her ordinary service retirement. Petitioner worked for the NYPD from 1984 through 2004. Over the course of her service, she sustained multiple line of duty injuries. Among these injuries were injuries sustained while assisting at the World Trade Center site on September 11, 2001. In October 2002, petitioner filed an ADR application to the Medical Board stating that she could not perform her duties due to respiratory problems caused by her work at the World Trade Center.

The Medical Board first considered petitioner’s application in June 2003 and found that the evidence did not prove petitioner was disabled from performing the full duties of a NYC police officer. The Trustees reviewed this decision and upheld the decision to deny petitioner’s ADR. In May 2004, petitioner filed another application for ADR based on her issues with shortness of breath, burning lungs, and nose bleeds. Again, the Medical Board recommended disapproval of petitioner’s applications and the Trustees agreed. In August 2006, the Medical Board reviewed petitioner’s second ADR application for a second time and came to the same conclusion. After the fifth denial, petitioner commenced this Article 78 appeal.

To challenge a disability determination in an Article 78 appeal, the findings of the Medical Board will always be upheld unless it lacks a rational basis or is arbitrary and capricious. As long as the Medical Board can provide evidence to support its decision the Court cannot weigh the medical evidence or substitute their judgment. While the petitioner clearly suffered from some sort of respiratory impairment, as evidenced in the doctors’ reports she provided, the Medical Board’s finding that the impairment was not substantial enough to the level of a disability was supported by independent credible evidence and therefore the Court must defer to the expertise of the Medical Board.

Accordingly, the Supreme Court denied petition seeking to annul respondents’ determination to deny ADR and dismissed the proceeding.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Joseph Confreda v New York State Comptroller

This Article 78 proceeding was brought about by petitioner, Joseph Confreda, 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 January 2005 while on the job, petitioner slipped and fell on accumulated snow and ice on a wooden plan in front of his command post. 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 that he had walked across the plank multiple times during his shift without noticing any snow or ice. In the injury report, petitioner wrote that he “slipped and fell on snow and ice covering [the] plywood”. Since his written statement describes the plank as being ice covered, the Court concluded that petitioner should have been aware of this dangerous condition and been able to anticipate the possibility of falling.

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

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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.

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Matter of Stanley Jefferson v Raymond Kelly

This Article 78 proceeding was commenced to annul respondents’ decision denying petitioner’s application for accident disability retirement benefits. Petitioner became a uniformed police officer for the NYPD in 1997 and was assigned to work at the World Trade Center site for some period of time following the September 11 attacks. The petitioner began having symptoms of depression, anxiety, and agoraphobia in 2002 and was granted ordinary disability retirement (ODR) in 2004. Shortly thereafter, petitioner applied for accidental disability retirement (ADR), claiming that his psychological problems were due to the time spent at Ground Zero. The Medical Board unanimously denied petitioner’s application in 2005 which resulted in this Article 78 appeal.

Petitioner argued that the denial of his ADR was arbitrary and capricious. Respondents contend that credible evidence exists showing that petitioner’s disability was not caused by his time assigned to the World Trade Center site but due to his cardiac problems and the passing of his mother. Additionally, petitioner did not file the necessary notice of petition to qualify for the World Trade Center presumption.

In the various medical documents from petitioner’s doctors and mental health care providers there are numerous references linking his anxiety, panic, and depression to the death of his mother and his incipient cardiac disease. Neither of petitioner’s doctors causally linked his psychological ailments to his World Trade Center assignment but instead suggested his condition was caused by other “life changing circumstances”.

Accordingly, the Court denied the petition and dismissed the proceeding.

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