                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   522392
________________________________

In the Matter of LARRY A.
   BEVILACQUA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


      The Sammarco Law Firm, Buffalo (Andrea L. Sammarco of
counsel), for petitioner.

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

                             __________


Lynch, 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, a police captain, applied for accidental
disability retirement benefits in 2012, alleging that he was
permanently incapacitated from performing his job duties as the
result of an incident that occurred on September 18, 2002. On
that date, petitioner was investigating an armed robbery when he
slipped while going down the front steps as he left a suspect's
residence. Following a hearing, the Hearing Officer denied the
application, concluding that the incident did not constitute an
                               -2-                522392

accident within the meaning of the Retirement and Social Security
Law. Respondent adopted the Hearing Officer's decision,
prompting this CPLR article 78 proceeding.1

      We confirm. "As the applicant, petitioner bore the burden
of demonstrating his entitlement to accidental disability
retirement benefits, and respondent's determination will be
upheld if supported by substantial evidence" (Matter of Madaffari
v DiNapoli, 104 AD3d 1047, 1047 [2013] [citations omitted]; see
Matter of Holden v DiNapoli, 122 AD3d 1105, 1106 [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]). Further, "injuries incurred due to conditions that
are readily observable and could be reasonably anticipated, or
attributable to an employee's own misstep or inattention, do not
consitute accidents" (Matter of Lamb v DiNapoli, 139 AD3d 1312,
1313 [2016]; see Matter of Yurko v DiNapoli, 122 AD3d 1047, 1048
[2014]).

      It is undisputed that investigating an armed robbery was
part of petitioner's job duties. Petitioner testified that it
had rained the night before the robbery and that he had
approached the suspect's house by crossing the lawns of several
neighbors in order to avoid being observed. After ascertaining
that the resident was not involved in the robbery, he went to
leave by descending a set of steps at which time he slipped and
fell. According to petitioner's testimony, he fell because the
steps had been painted with glossy paint and the top step was
sloped in a downward angle. He also testified that, after he
fell, he observed that his boots were damp from crossing the
neighbors' lawns. Both the police department's incident report
and two other reports signed by petitioner that were created on
the day of the incident attribute the fall to his wet boots

     1
        Petitioner was awarded performance of duty disability
retirement benefits.
                              -3-                  522392

slipping on the painted porch, with no mention of the sloped
step. Such a discrepancy between the contemporaneous incident
reports and petitioner's testimony presented a credibility issue
for the Hearing Officer and respondent to resolve (see Matter of
Lamb v DiNapoli, 139 AD3d at 1313; Matter of Messina v New York
State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069
[2013], lv denied 21 NY3d 855 [2013]). The Hearing Officer found
that the earlier written descriptions of the accident were more
credible than claimant's testimony attributing his fall to the
sloped step (see Matter of Holden v DiNapoli, 122 AD3d at 1106-
1107). Even accepting claimant's testimony, the Hearing Officer
concluded that petitioner, who grew up in the area and described
the porch as "one of those big old North Buffalo porches," should
have reasonably anticipated that the "steps might have not been
level." In our view, substantial evidence supports respondent's
determination that the conditions that caused petitioner's fall –
the painted surface of the steps, his wet boots and even the
sloped step – were readily observable and that the fall resulted
from petitioner's own misstep or inattention (see Matter of
Holden v DiNapoli, 122 AD3d at 1107; Matter of Madaffari v
DiNapoli, 104 AD3d at 1047-1048). Accordingly, the determination
will not be disturbed.

     Garry, J.P., Egan Jr., Rose and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
