                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      519377
________________________________

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

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


Calendar Date:   June 4, 2015

Before:   Garry, J.P., Rose, Devine and Clark, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Patricia
D'Alvia of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Paul
Groenwegen of counsel), for respondent.

                             __________


Clark, 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 police officer, was assisting an emergency
medical technician in lifting a backboard holding a motor vehicle
accident victim when he injured his shoulder. His application
for accidental disability retirement benefits was initially
disapproved, and he requested a hearing and redetermination.
Following the hearing, the Hearing Officer determined that the
incident constituted an accident within the meaning of the
                               -2-                519377

Retirement and Social Security Law. Upon review, however,
respondent reversed that determination and denied petitioner's
application.1 This CPLR article 78 proceeding ensued.

      We confirm. Initially, contrary to petitioner's
contention, respondent was not bound by the Hearing Officer's
determination (see Retirement and Social Security Law § 74 [b];
Matter of Wilson v DiNapoli, 52 AD3d 931, 933 [2008]).
Petitioner has the burden of proving entitlement to accidental
disability retirement benefits, and respondent's determination
will be upheld if supported by substantial evidence (see Matter
of Dicioccio v DiNapoli, 124 AD3d 1170, 1171 [2015]; Matter of
Greco v DiNapoli, 123 AD3d 1366, 1367 [2014]). Notably, "an
incident does not qualify as an accident justifying the award of
accidental disability retirement benefits where the injury
results from an expected or foreseeable event arising during the
performance of routine employment duties" (Matter of O'Brien v
Hevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005];
see Matter of Rodriquez v DiNapoli, 110 AD3d 1125, 1126 [2013]).

      Here, petitioner testified that assisting emergency medical
technicians by helping to lift individuals on backboards was a
routine employment duty. As to the incident in question,
petitioner testified that he injured his shoulder when the victim
began to roll to one side of the backboard and he had to
compensate for this by raising that side of the backboard.
Although petitioner further testified that the backboard had
straps to be used to immobilize an injured person and that the
victim was strapped to the backboard, he could not recall how
many straps the backboard had or if all the straps had been used
on the victim. Under these circumstances, substantial evidence
supports respondent's determination that the victim's movement
while being lifted could have been reasonably anticipated and,
therefore, the incident did not constitute an accident within the
meaning of the Retirement and Social Security Law (see Matter of
Stone v New York State Comptroller, 90 AD3d 1377-1378, 1377
[2011], lv denied 18 NY3d 810 [2012]; Matter of Felix v New York


     1
        Petitioner's application for performance of duty
disability retirement benefits was granted.
                              -3-                  519377

State Comptroller, 28 AD3d 993, 994 [2006]).

     Garry, J.P., Rose and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
