                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   522941
________________________________

In the Matter of TIMOTHY
   POWERS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 18, 2016

Before:   Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Jason D.
Lewis of counsel), for petitioner.

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

                             __________


Aarons, 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 denying petitioner's
application for accidental disability retirement benefits.

      Petitioner worked as a firefighter for over 20 years. In
March 2012, while moving heavy firefighting equipment, petitioner
tripped and fell sustaining injuries to his head and back when he
hit the ground. Thereafter, he filed an application for
accidental disability retirement benefits based upon this
incident. The application was denied, and, following a hearing,
a Hearing Officer upheld the denial of the application upon the
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ground that the incident did not constitute an accident within
the meaning of Retirement and Social Security Law § 363.
Respondent 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]).
"Significantly, it must result from an activity that is not
undertaken in the performance of ordinary job duties and that is
not an inherent risk of such job duties" (Matter of Sica v
DiNapoli, 141 AD3d 799, 799 [2016] [internal quotation marks and
citations omitted]; see Matter of Kenny v DiNapoli, 11 NY3d at
874). Injuries sustained due to conditions that are readily
observable and that could be reasonably anticipated, or
attributable to an employee's own misstep or inattention, do not
constitute accidents within the context of the Retirement and
Social Security Law (see Matter of Lamb v DiNapoli, 139 AD3d
1312, 1313 [2016]; Matter of Holden v DiNapoli, 122 AD3d 1105,
1106, [2014]). As the party seeking benefits, petitioner bears
the burden of establishing that the event producing the injury
was an accident, and respondent's determination will be upheld
where it is supported by substantial evidence (see Matter of Lamb
v DiNapoli, 139 AD3d at 1313; Matter of Dicioccio v DiNapoli, 124
AD3d 1170, 1171 [2015]), a standard that "demands only that a
given inference is reasonable and plausible, not necessarily the
most probable" (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d
494, 499 [2011]).

      Petitioner testified that, on the day of the incident,
there was light rainfall when he was transferring about 20 pieces
of firefighting equipment from a firetruck that was being
repaired to a spare firetruck. To facilitate this task, the
trucks were parked on an asphalt parking lot approximately four
to five feet apart from each other. After moving equipment to
the spare truck for about 10 minutes, petitioner picked up a
Lukas tool, commonly known as the "jaws of life," which weighed
approximately 70 to 75 pounds. Petitioner explained that, as he
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walked sideways with this equipment towards the spare truck, he
tripped and fell, after which he observed a one-foot long crack
in the pavement that was broken into one to one-half inch
fragments that he had not seen prior to his fall. One of
petitioner's colleagues who was assisting him with the transfer
of equipment and who witnessed the incident also testified that
they were not previously warned about the condition of the
pavement. Nevertheless, under the circumstances presented here,
the incident occurred during petitioner's performance of routine
and regular duties as a firefighter, which he had performed
numerous times, and the hazard encountered by petitioner was
readily observable and one that could have been reasonably
anticipated (see Matter of Holden v DiNapoli, 122 AD3d at 1107;
Matter of DiGiacomo v DiNapoli, 115 AD3d 1138, 1139 [2014];
Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1338 [2013]).
Accordingly, we discern no basis to disturb respondent's finding
that petitioner's fall resulted from his own inattention and
misstep and that the incident did not constitute an accident
within the meaning of the Retirement and Social Security Law (see
Matter of Lamb v DiNapoli, 139 AD3d at 1313-1314; Matter of
Schoales v DiNapoli, 132 AD3d 1184, 1186 [2015]).

     Peters, P.J., Garry, Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
