                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    521603
________________________________

In the Matter of GARY G.
   SCHULTZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   February 10, 2016

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

                             __________


      Flaherty & Shea, Buffalo (James P. Shea of counsel), for
petitioner.

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

                             __________


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 respondent Comptroller denying
petitioner's application for accidental disability retirement
benefits.

      Petitioner worked as a firefighter for the City of Buffalo
Fire Department for approximately 18 years. On June 2, 2008, he
was injured when he inhaled toxic fumes while fighting a fire at
a pool warehouse where hazardous chemicals were stored.
Thereafter, he filed an application for accidental disability
                              -2-                521603

retirement benefits based upon this incident as well as another
that occurred on February 26, 2013. His application was denied
on the ground that the incidents in question did not constitute
accidents within the meaning of Retirement and Social Security
Law § 363. Petitioner requested a hearing and redetermination
and later withdrew his application with respect to the February
26, 2013 incident. At the conclusion of the hearing, the Hearing
Officer found that the June 2, 2008 incident constituted an
accident entitling him to accidental disability retirement
benefits. Respondent Comptroller, however, disagreed and denied
petitioner's application. This CPLR article 78 proceeding
ensued.

      We confirm. It is well settled that in order for an
incident to constitute an accident within the meaning of the
Retirement and Social Security Law, it must be a "'sudden,
fortuitous mischance, unexpected, out of the ordinary, and
injurious in impact'" (Matter of Lichtenstein v Board of Trustees
of Police Pension Fund of Police Dept. of City of N.Y., Art. II,
57 NY2d 1010, 1012 [1982], quoting Johnson Corp. v Indemnity Ins.
Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; see
Matter of Stimpson v Hevesi, 38 AD3d 979, 980 [2007]).
Significantly, it must result from an activity that is not
undertaken in the performance of ordinary job duties (see Matter
of Baron v DiNapoli, 57 AD3d 1202, 1203 [2008]; Matter of Pryor v
Hevesi, 14 AD3d 776, 776 [2005]) and that is not an inherent risk
of such job duties (see Matter of Walion v New York State & Local
Police & Fire Retirement Sys., 118 AD3d 1215, 1215-1216 [2014];
Matter of Carrella v DiNapoli, 98 AD3d 1220, 1221 [2012]).
Notably, the burden is on the petitioner to demonstrate that the
precipitating event constituted an accident, and the
Comptroller's determination in this regard will be upheld if
supported by substantial evidence (see Matter of Walion v New
York State & Local Police & Fire Retirement Sys, 118 AD3d at
1215; Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428 [2013]).

      Here, petitioner contends that the injuries he sustained in
the June 2, 2008 warehouse fire were the result of an accident
because the sprinkler system was not operating properly, the
proper protocol for fighting fires involving hazardous materials
was not followed and the owner of the warehouse building failed
                                 -3-                   521603

to obtain the proper license to store dangerous chemicals. These
factors, however, do not transform the incident in question into
an accident within the meaning of the Retirement and Social
Security Law. Petitioner's injuries were the direct result of
his inhalation of smoke and fumes that occurred, as he conceded,
while performing his ordinary firefighting duties.1 Indeed,
cases involving similar applications for accidental disability
retirement benefits have held that exposure to toxic fumes while
fighting fires is an inherent risk of a firefighter's regular
duties (see Matter of Huether v Regan, 155 AD2d 860, 861 [1989],
lv denied 75 NY2d 705 [1990]; Matter of Daly v Regan, 97 AD2d
575, 576 [1983], lv denied 61 NY2d 602 [1984]). Therefore,
substantial evidence supports the Comptroller's determination
that the June 2, 2008 incident did not constitute an accident
within the meaning of Retirement and Social Security Law § 363.

         Petitioner's remaining contentions are without merit.

         Garry, Rose, Devine and Clark, JJ., concur.



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




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court



     1
        We note that petitioner had previous experience combating
fires involving hazardous materials and was aware that the
warehouse contained pool chemicals.
