                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518678
________________________________

In the Matter of JOSEPH
   MERCURIO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as
   State Comptroller,
                    Respondent.
________________________________


Calendar Date:   October 6, 2014

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

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Sean
Dooley of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.

                             __________


Devine, 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 fire lieutenant, was injured in February 2011
when, while responding to a call, he stepped from the cab of the
fire engine into a three-foot snow bank and his foot caught the
sidewalk curb, twisting his knee. Petitioner thereafter applied
for accidental disability retirement benefits and, as relevant
here, the application was denied upon a finding that the February
                                -2-                518678

2011 incident did   not constitute an accident within the meaning
of Retirement and   Social Security Law § 363. Ultimately,
respondent upheld   the denial and petitioner thereafter commenced
this CPLR article   78 proceeding to challenge that determination.

      The petitioner bears the burden of demonstrating that he or
she is entitled to accidental disability retirement benefits by
showing that the precipitating injury was caused by an incident
that was "a sudden, fortuitous mischance, unexpected, out of the
ordinary, and injurious in impact" (Matter of Bennett v DiNapoli,
119 AD3d 1310, 1310 [2014] [internal quotation marks and
citations omitted]). Accordingly, a decision to deny benefits
must be confirmed when it is shown that the injury was the result
of ordinary employment duties rather than the occurrence of an
unexpected event (see Matter of Lundquist v DiNapoli, 106 AD3d
1439, 1439 [2013]; Matter of Brown v New York State & Local
Retirement Sys., 106 AD3d 1437, 1438 [2013]).

      Here, petitioner testified that, in the city where he
worked, there is usually grass next to the sidewalk and then a
curb before the street. Additionally, he related that in his
capacity as a firefighter, he had been to the street where the
incident occurred between 6 and 12 times and that the exact
location where he stepped out of the truck was "[their] spot to
pull up." Accordingly, we find that petitioner could have
reasonably anticipated the hazard, even if he did not see the
curb before the fall, and therefore respondent's determination is
supported by substantial evidence (see Matter of Bennett v
DiNapoli, 119 AD3d at 1311; Matter of Martin v Murray, 95 AD3d
1556, 1556-1557 [2012]; Matter of Tomita v DiNapoli, 66 AD3d
1071, 1072 [2009]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.
                              -3-                  518678

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
