                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518445
________________________________

In the Matter of ROBERT E.
   HOEHN JR.,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE COMPTROLLER
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 7, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

                             __________


      Edelstein & Grossman, New York City, (Jonathan I. Edelstein
of counsel), for petitioner.

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

                             __________


Lahtinen, J.P.

      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 which denied
petitioner's applications for performance of duty and accidental
disability retirement benefits.

      Petitioner, a police detective, was driving home from work
after his shift in May 2010 at around 5:30 p.m. when he came upon
a disabled vehicle causing a backup on a heavily traveled
roadway. He parked his car in the median, identified himself as
a police officer and, with petitioner positioned near the
steering wheel and the motorist behind the car, the two attempted
                              -2-                518445

to push the car up a slight incline onto the median. After an
unsuccessful first attempt, the two began to push again and, as
the car rolled backwards, petitioner slipped and lost his
balance, causing him to rupture his Achilles tendon. Petitioner
subsequently applied for both performance of duty and accidental
disability retirement benefits. Those applications were denied,
prompting him to request a hearing and redetermination.
Following a hearing, the Hearing Officer upheld the denials,
finding both that petitioner was not in service at the time of
his injury and that the incident did not constitute an accident
within the meaning of Retirement and Social Security Law § 363.
Respondent Comptroller (hereinafter respondent) accepted the
Hearing Officer's decision,1 and petitioner thereafter commenced
this CPLR article 78 proceeding.

      Petitioner first contends that respondent erred in
determining that he was not in service at the time of his injury.
Undoubtedly, the authority to determine applications for
retirement benefits is vested with respondent, including whether
an applicant was in service when an injury was suffered, but such
decision must be supported by substantial evidence to be
sustained (see Matter of Welch v Hevesi, 32 AD3d 564, 564 [2006];
Matter of Jetter v Hevesi, 5 AD3d 941, 941 [2004]). The
determination with respect to whether an applicant was in service
turns on whether he or she was performing job duties at the time
of the injury (see Matter of Crisanti v McCall, 302 AD2d 672,
673-674 [2003]; Matter of De Zago v New York State Police &
Firemen's Retirement Sys., 157 AD2d 957, 958 [1990]). Here,
petitioner testified without contradiction that he had been


    1
        While the Hearing Officer's decision denied both
petitioner's performance of duty and accidental disability
retirement benefit applications, respondent's determination
stated that the only application before the Hearing Officer was
that for accidental disability retirement benefits and affirmed
only to that extent. However, the parties have stipulated that
this Court's determination with respect to whether petitioner was
injured in the course of performing his duties will be
dispositive of his application for performance of duty disability
retirement benefits.
                              -3-                518445

instructed by the police department to respond to any type of
emergency situation, whether or not he was on duty. He further
testified that, given that it was rush hour on a well-traveled
highway, it was necessary for him to render assistance to prevent
an accident or an injury to a pedestrian. Petitioner's
supervisor also testified that officers in the department were
instructed to assist the public at any time, and that the
activity that petitioner undertook would have been expected of
him. Accordingly, respondent's determination that petitioner was
not in service at the time of his injury was not supported by
substantial evidence and petitioner is entitled to performance of
duty disability retirement benefits (see Matter of Crisanti v
McCall, 302 AD2d at 673-674; Matter of De Zago v New York State
Police & Firemen's Retirement Sys., 157 AD2d at 958; compare
Matter of Welch v Hevesi, 32 AD3d at 564 [even though on duty,
the petitioner not in service when "engaged in personal activity
rather than performing work duties"]; Matter of Economico v New
York State & Local Police & Fire Retirement Sys., 7 AD3d 913, 914
[2004], lv denied 3 NY3d 611 [2004] [the petitioner not in
service when engaged in personal activity during lunch break];
Matter of Waldron v McCall, 302 AD2d 742, 743 [2003], lv denied
100 NY2d 503 [2003] [the petitioner not in service when
retrieving weapon for purely personal reasons]).

      Turning to respondent's determination that petitioner is
not entitled to accidental disability retirement benefits, we
confirm. Petitioner bore the burden of demonstrating his
entitlement to benefits by demonstrating that the injury-causing
incident was "a sudden, fortuitous mischance, unexpected, out of
the ordinary, and injurious in impact" (Matter of Cavallo v
DiNapoli, 117 AD3d 1366, 1367 [2014] [internal quotation marks
and citations omitted]). By contrast, an incident will not be
considered accidental when it results from an event that arises
during the performance of routine employment duties and is
expected or foreseeable (see Matter of DiGiacomo v DiNapoli, 115
AD3d 1138, 1139 [2014]; Matter of Rodriquez v DiNapoli, 110 AD3d
1125, 1126 [2013]). Here, both petitioner and his supervisor
related that pushing a disabled vehicle off the road was the type
of activity normally undertaken by a police officer, and a
vehicle rolling back down an incline cannot be said to be
unexpected. To the extent that petitioner now contends that the
                                 -4-                  518445

cause of the vehicle rolling backward can be attributed to the
fact that the motorist unexpectedly stopped pushing to receive a
phone call, we note that the incident reports by both petitioner
and the motorist did not depict the events as such and that the
discrepancy between the reports and petitioner's testimony is
properly resolved by respondent (see Matter of Messina v New York
State & Local Employees' Retirement Sys., 102 AD3d 1068, 1069
[2013], lv denied 21 NY3d 855 [2013]; Matter of Carpiniello v
DiNapoli, 88 AD3d 1045, 1046 [2011]).2 Accordingly, respondent's
determination denying accidental disability retirement benefits
is supported by substantial evidence (see Matter of Bennett v
DiNapoli, 119 AD3d 1310, 1311 [2014]; Matter of Pufahl v Murray,
111 AD3d 1050, 1051 [2013]).

         Stein, McCarthy, Rose and Clark, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner ineligible to
receive performance of duty disability retirement benefits;
petition granted to that extent and matter remitted to respondent
Comptroller for further proceedings not inconsistent with this
Court's decision; and, as so modified, confirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court



     2
        We further note that, in his report of the incident, the
motorist noted that petitioner stated that he had "hurt this
ankle in the past and that he was going to have surgery on it."
