                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 18, 2014                   518861
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In the Matter of RONALD J.
   BECKLEY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS NITIDO, as Deputy State
   Comptroller,
                    Respondent.
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Calendar Date:   November 13, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

                             __________


      Baker, Leshko, Saline & Blosser, LLP, White Plains (Anthony
C. Saline of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                             __________


Peters, P.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 the Comptroller which denied
petitioner's application for accidental disability retirement
benefits.

      Petitioner, a police officer, responded to a report of a
fight at a bar. After arriving at the scene, he observed a
vehicle coming toward him, with an individual on the hood of the
vehicle firing a gun into the vehicle's windshield. Petitioner
drew his weapon and fired a shot at the individual on the hood of
the vehicle as it passed him. The shot did not strike the
                              -2-                518861

individual, whom petitioner later discovered was a fellow police
officer. Petitioner thereafter filed an application for
accidental disability retirement benefits, claiming that he
suffers from posttraumatic stress disorder and high blood
pressure as a result of this incident, making him permanently
incapacitated from performing the duties of a police officer.
The application was initially denied. Following a hearing, the
Hearing Officer also denied the application, finding that the
incident did not constitute an accident within the meaning of the
Retirement and Social Security Law. The Comptroller adopted the
Hearing Officer's finding and this CPLR article 78 proceeding
ensued.

      We confirm. "Petitioner bore the burden of proving
entitlement to accidental disability retirement benefits and the
Comptroller's determination will be upheld if supported by
substantial evidence" (Matter of Bleeker v New York State
Comptroller, 84 AD3d 1683, 1683 [2011], lv denied 17 NY3d 709
[2011] [citation omitted]; see Matter of Fiducia v DiNapoli, 111
AD3d 1018, 1018 [2013]). "To qualify as an accident, the
precipitating event must be a sudden, fortuitous mischance,
unexpected, out of the ordinary, and injurious in impact" (Matter
of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal
quotation marks and citations omitted]; see Matter of Cavallo v
DiNapoli, 117 AD3d 1366, 1367 [2014]). Significantly, the
Comptroller's determination "must be confirmed where the injury
was sustained during the performance of ordinary employment
duties and without the occurrence of an unexpected event" (Matter
of Bennett v DiNapoli, 119 AD3d 1310, 1311 [2014]; see Matter of
Quartucio v DiNapoli, 110 AD3d at 1337).

      Petitioner testified that he had been trained as a police
officer to fire his gun when faced with a situation, such as the
one presented to him here, where he observed an individual using
deadly force against another individual. Inasmuch as the record
supports the Comptroller's determination that petitioner's
alleged injuries arose not from an unexpected event, but from
risks inherent in the performance of petitioner's job duties, it
will not be disturbed (see Matter of Berbenich v Regan, 81 AD2d
732, 732 [1981], affd 54 NY2d 792 [1981]).
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     Lahtinen, Garry, Rose and Egan Jr., JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
