                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      522010
________________________________

In the Matter of STANLEY LAMB,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as
   Comptroller of the State of
   New York, et al.,
                    Respondents.
________________________________


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


      Sherman, Federman, Sambur & McIntyre, New York City (Sean
Patrick Riordan of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondents.

                             __________


Lahtinen, J.P.

      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 denying
petitioner's application for accidental disability retirement
benefits.

      Petitioner, a police officer with the Port Authority of New
York and New Jersey for 28 years, applied for accidental
disability retirement benefits following a slip and fall in a
stairwell on May 23, 2012, contending that he permanently injured
his left knee. Following a hearing, a Hearing Officer denied the
application upon the ground that the incident did not constitute
                              -2-                522010

an accident within the meaning of Retirement and Social Security
Law § 363. Respondent Comptroller adopted the Hearing Officer's
findings and conclusions, prompting petitioner to commence this
CPLR article 78 proceeding.

      We confirm. For purposes of the Retirement and Social
Security Law, an accident is defined as "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]). The burden was
on petitioner, as the party seeking benefits, to establish that
the injury producing event was accidental and, "to be deemed
accidental, an injury must not have been the result of activities
undertaken in the ordinary course of one's job duties but,
rather, must be due to a precipitating accidental event which is
not a risk of the work performed" (Matter of Schoales v DiNapoli,
132 AD3d 1184, 1185 [2015] [internal quotation marks and
citations omitted]). Moreover, injuries incurred due to
conditions that are readily observable and could be reasonably
anticipated, or attributable to an employee's own misstep or
inattention, do not constitute accidents (see Matter of Holden v
DiNapoli, 122 AD3d 1105, 1106 [2014]; Matter of Yurko v DiNapoli,
122 AD3d 1047, 1048 [2014]; Matter of DiGiacomo v DiNapoli, 115
AD3d 1138, 1139 [2014]).

      Petitioner testified that, on the day in question, he was
working his regular assignment patrolling the lower level toll
booth lanes on the George Washington Bridge when, while
descending stairs returning from a break, he slipped on the
landing of a stairwell in the administrative building.
Traversing this employee staircase was a routine part of
petitioner's police patrol duties, as he testified that he used
the stairwell multiple times every day during his shift. In the
contemporaneous incident report prepared by a police sergeant,
petitioner reported that he had slipped on a "wet spot" and the
weather conditions were described as "on and off rain." At the
hearing, however, petitioner testified that he had no
recollection of the weather conditions that day and described the
surface where he had slipped as a "large puddle," two to three
feet wide, which he claimed was not observable as it blended with
the similarly-colored floor surface. The Comptroller discredited
                              -3-                  522010

petitioner's testimony to the extent that it was inconsistent
with the incident report, given his ability to observe the
weather conditions at length that day while working outside, and
concluded that a large puddle would have been readily observable.
Notably, the assessment of credibility and resolution of apparent
conflicting evidence was for the Comptroller to resolve (see
Matter of Messina v New York State & Local Employees' Retirement
Sys., 102 AD3d 1068, 1069 [2013], lv denied 21 NY3d 855 [2013]).
Given that the incident occurred during the performance of
routine employment duties, that petitioner could have reasonably
anticipated that the stairs would be wet and slippery on a rainy
day, and that the fall resulted from petitioner's own misstep or
inattention, substantial evidence supports the Comptroller's
determination that the incident did not constitute an accident
within the meaning of the Retirement and Social Security Law (see
Matter of Schoales v DiNapoli, 132 AD3d at 1186; Matter of Holden
v DiNapoli, 122 AD3d at 1106; Matter of Yurko v DiNapoli, 122
AD3d at 1048; Matter of DiGiacomo v DiNapoli, 115 AD3d at 1139).

     McCarthy, Devine, Clark and Mulvey, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
