                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      522020
________________________________

In the Matter of PAT SICA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                             __________


     Donald P. Henry, White Plains, for petitioner.

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

                             __________


Garry, 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 worked as a firefighter with the City of Yonkers
Fire Department for approximately 17 years. On September 2,
2001, he was injured when he was exposed to and inhaled colorless
and odorless gases — to wit, carbon monoxide and cyanogen
chloride — while responding to an emergency at a supermarket.
Thereafter, he filed an application for accidental disability
retirement benefits based upon, among other things, this
incident. The application was denied on the ground that the
incident did not constitute an accident within the meaning of
                              -2-                522020

Retirement and Social Security Law § 363. In a careful analysis,
the Hearing Officer subsequently determined that the incident did
constitute an accident, as "[t]he combination of unforeseeable
and exigent circumstances made it virtually impossible for
[petitioner] to recognize the danger." Thereafter, respondent
ultimately upheld the initial denial, and petitioner then
commenced this CPLR article 78 proceeding challenging that
determination.

      We annul. It is well settled that for purposes of the
Retirement and Social Security Law, an accident is defined as "'a
sudden, fortuitous mischance, unexpected, out of the ordinary,
and injurious in impact'" (Matter of Kenny v DiNapoli, 11 NY3d
873, 874 [2008], quoting 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]; accord Matter of Schoales v
DiNapoli, 132 AD3d 1184, 1185 [2015]). "Significantly, it must
result from an activity that is not undertaken in the performance
of ordinary job duties and that is not an inherent risk of such
job duties" (Matter of Schultz v DiNapoli, 137 AD3d 1454, 1455
[2016] [citations omitted]; see Matter of Schoales v DiNapoli,
132 AD3d at 1185). Petitioner bears the burden of establishing
that the event producing the injury was an accident, and
respondent's determination will be upheld where it is supported
by substantial evidence (see Matter of Dicioccio v DiNapoli, 124
AD3d 1170, 1171 [2015]; Matter of Roth v DiNapoli, 105 AD3d 1183,
1184 [2013]).

      Petitioner testified that on the day of the incident, he
received a medical emergency call from a local supermarket
reporting an individual experiencing difficulty with breathing.
Upon arriving at the site, petitioner was directed to the walk-in
freezer located at the back of the supermarket, where he
discovered two unconscious individuals — one inside the freezer
and one outside the freezer. Petitioner immediately provided
cardiopulmonary resuscitation and breathing assistance to the
unconscious victim inside the freezer until an ambulance crew
arrived to assist. Petitioner explained that, in the entire
course of providing medical services to the victim at the scene,
he never smelled, heard, or saw anything that might have
indicated that chemical gases or fumes were involved in the
                              -3-                522020

medical emergency. Petitioner's testimony further reflected
that, although he felt ill after helping move the victims to an
ambulance, he did not learn that chemical gases were present at
the scene until he himself was transported to a hospital for
medical evaluation.

      We have "held that exposure to toxic fumes while fighting
fires is an inherent risk of a firefighter's regular duties"
(Matter of Schultz v DiNapoli, 137 AD3d at 1456 [emphasis added];
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]). Here, however, unlike
our prior cases involving exposure to toxic gases or smoke,
petitioner was not responding to a fire that presented the
inherent and foreseeable risk of inhaling toxic gases (see Matter
of Schultz v DiNapoli, 137 AD3d at 1456; Matter of Huether v
Regan, 155 AD2d at 861) or smoke (see Matter of Daly v Regan, 97
AD2d at 576). The record evidence further reflects that
petitioner was neither aware that the air within the supermarket
contained toxic chemical gases (cf. Matter of Schultz v DiNapoli,
137 AD3d at 1456 n), nor did he have any information that could
reasonably have led him to anticipate, expect or foresee the
precise hazard when responding to the medical emergency at the
supermarket (see Matter of Murphy v New York State Comptroller,
92 AD3d 1022, 1023 [2012]; Matter of Tierney v New York State
Comptroller, 90 AD3d 1215, 1215 [2011]). The Hearing Officer
made express factual findings that petitioner did not learn that
chemicals had been involved in the incident until after it ended.
He further found that there was no record evidence to support a
conclusion that petitioner should have been aware of the odorless
and invisible gas, nor that his training and experience related
to chemical exposure should have prepared him to recognize its
presence especially as no evidence suggested that others within
the supermarket exhibited symptoms of such exposure. Although
the dissent challenges the conclusion that petitioner could not
foresee the presence of the hazard, we find it highly significant
that respondent in no manner contradicted the Hearing Officer's
finding that petitioner neither could nor should have recognized
the danger posed in the circumstances presented.
                              -4-                522020

      In reversing the Hearing Officer's determination,
respondent instead relied upon petitioner's job description,
which indicates that he was required to respond to medical
emergencies and to be exposed to hazardous conditions such as
fumes and toxic materials. The dissent likewise relies heavily
upon petitioner's job description and training. Taken to its
immediate and logical conclusion, however, this position may
wholly eviscerate accidental disability retirement protection for
emergency responders in rescue situations; if a broadly written
job description that requires the rescue of individuals in
hazardous situations is allowed to replace a factual analysis of
the particular circumstances of each incident, those who put
themselves in harm's way may be left without recourse. Whether
an incident is so "sudden, fortuitous . . ., unexpected [and] out
of the ordinary" (Matter of Kenny v DiNapoli, 11 NY3d at 874
[internal quotation marks and citation omitted]) that it
qualifies as an accident within the meaning of the Retirement and
Social Security Law remains a factual issue that should not be
determined merely by reference to job descriptions. Otherwise,
emergency personnel will be rendered ineligible for accidental
disability retirement in any rescue situation, without regard to
how exigent, unexpected or unforeseeable the circumstances of
their injury may be. This cannot have been the Legislature's
intent in establishing the accidental disability retirement
program for rescue workers.

      Accordingly, we find that respondent's determination that
the September 2, 2001 incident did not constitute an accident
within the meaning of Retirement and Social Security Law § 363 is
unsupported by substantial evidence in the record before us. As
the hearing and determination of respondent under review were
limited to the question of whether that incident so qualified, we
decline to address in the first instance petitioner's arguments
regarding the presumption set forth by Retirement and Social
Security Law § 363-a or the issue of causation (see generally
Quintana v City of Buffalo, 114 AD3d 1222, 1223 [2014], lv denied
23 NY3d 902 [2014]).

     Lynch and Aarons, JJ., concur.
                               -5-               522020

McCarthy, J.P. (dissenting).

      In order to annul respondent's determination, the majority
necessarily finds that respondent's conclusion that petitioner
suffered from "injuries [that] were the result of a risk inherent
in the ordinary course of [petitioner's] duties" was not
supported by substantial evidence – that a reasonable mind could
not reach that conclusion based on the record evidence. We
disagree with the majority's finding and, therefore, we
respectfully dissent.

      "This Court is not free to substitute its assessment of the
. . . evidence for that of respondent, whose determinations must
be upheld when they are supported by substantial evidence"
(Matter of King v DiNapoli, 75 AD3d 793, 796 [2010] [citation
omitted]; see Matter of Schultz v DiNapoli, 137 AD3d 1454, 1455
[2016]). Substantial evidence is "such relevant proof as a
reasonable mind may accept as adequate to support a conclusion or
ultimate fact, and is less than a preponderance of the evidence,
overwhelming evidence or evidence beyond a reasonable doubt"
(Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499
[2011] [internal quotation marks and citation omitted]; see
Matter of King v DiNapoli, 75 AD3d at 796). "The standard
demands only that a given inference is reasonable and plausible,
not necessarily the most probable" (Matter of Ridge Rd. Fire
Dist. v Schiano, 16 NY3d at 499 [internal quotation marks and
citations omitted]).

      As the Court of Appeals has made clear, in order to find
that a petitioner has suffered an accident for the purposes of
accidental retirement disability benefits, it is "critical" that
the "precipitating accidental event" of a petitioner's injuries
is "not a risk of the work performed" by him or her (Matter of
McCambridge v McGuire, 62 NY2d 563, 568 [1984]; see Matter of
Mirrer v Hevesi, 4 AD3d 722, 723 [2004]; Matter of Jonigan v
McCall, 291 AD2d 766, 766 [2002]). Therefore, to constitute an
accident, "the event must arise from risks that are not inherent
to petitioner's regular employment duties" (Matter of Roberts v
DiNapoli, 117 AD3d 1166, 1166 [2014]; see Matter of Walion v New
York State & Local Police & Fire Retirement Sys., 118 AD3d 1215,
1216 [2014]). Finally, a petitioner bears the burden of proving
                              -6-                522020

that his or her injuries were the result of an accident (see
Matter of Walion v New York State & Local Police & Fire
Retirement Sys., 118 AD3d at 1215). Accordingly, if the
conclusion that petitioner's exposure to chemical gases arose
from risks inherent in petitioner's regular employment duties is
one that results from reasonable and plausible inferences from
the record evidence, this Court must confirm respondent's
determination.

      Turning first to the record evidence regarding the scope of
petitioner's regular professional duties, the record establishes
that petitioner was a firefighter tasked with fighting fires and
providing emergency medical assistance. The record contains the
job description governing petitioner's employment, which opens
with the assertion that "[t]he work is of a hazardous nature."
Specifically as to petitioner's medical duties, it provides that
"[a]dminist[ration of] emergency first aid treatment to injured
persons" is an "ESSENTIAL FUNCTION[]" of petitioner's job.
According to the same description, the environmental conditions
in which petitioner was expected to work included "exposure to .
. . toxic materials [and] chemicals."

      The record also contains proof regarding petitioner's
professional training and his use of that training. Petitioner
testified that he specifically received training in providing
emergency medical aid and in "chemical exposure." Moreover, his
testimony established that he regularly responded to medical
emergencies, and he also testified that he "may have" responded
to chemical spill and chemical exposure emergencies in the past.1
Considering the foregoing proof, uncontested evidence establishes
that petitioner was informed that his professional duties
included providing emergency medical assistance, that he was
trained to perform emergency medical assistance and that he did,
in fact, provide emergency medical assistance as a part of his
job duties. Additional uncontested proof establishes that


    1
        To the extent that petitioner provided an ambiguous
answer regarding whether he had responded to chemical exposure
emergencies in the past, as the party assigned the burden of
proof, that ambiguity does not inure to his benefit.
                              -7-                522020

petitioner was informed that his job required him to be exposed
to toxic chemicals, that he was specifically trained in chemical
exposure and that he "may have" actually responded to chemical
exposure incidents in the past.

      Turning to the question of whether petitioner was injured
based upon risks inherent in fulfilling the foregoing duties,
petitioner received an emergency call reporting a person
experiencing trouble breathing in a supermarket. Upon arrival at
that indoor location, petitioner found two unconscious persons in
close proximity to one another, both exhibiting no signs of
external trauma. Although unknown to petitioner at the time,
those persons were in need of emergency medical assistance
because they had inhaled carbon monoxide and cyanogen chloride2
and, in providing emergency aid, petitioner was also exposed to
those toxic chemicals. Accordingly, it is undisputed that
petitioner was injured by the same dangerous condition that gave
rise to the need for his emergency medical assistance, exposure
to chemical gases.3 Moreover, petitioner was on notice that his


    2
        Apparently, the two persons were supermarket employees
who had been attempting to chemically clean a walk-in freezer.
    3
        We disagree with the majority's assertion that no
reasonable mind could conclude that a firefighter with
petitioner's training could have anticipated the possibility that
there was a problem with air quality at the scene. Although the
chemical gases were odorless, petitioner was on notice of a
person suffering from breathing problems. He found two
unconscious persons, which removed any reasonable possibility
that the etiology of the medical conditions could be an internal
condition unique to one of the individuals, such as a heart
attack. Moreover, and considering the proper allocation of the
burden of proof to petitioner, the record is bereft of any
plausible explanation of a potential cause of the conditions of
the two people that was not related to air quality, let alone an
explanation of why those potential causes would be more likely
than air quality. On its own, the fact that a reasonable mind
could conclude that a person with petitioner's training could
have reasonably anticipated an air quality problem is a
                              -8-                522020

duties included exposing himself to such dangerous conditions by
his job description, his training and his actual professional
experiences. Given this record evidence, a reasonable mind could
conclude that petitioner suffered injuries that were the result
of the risks inherent in his regular professional duties as a
firefighter and emergency medical assistance provider explicitly
tasked with risking chemical exposure and specifically trained
for that risk (see Matter of Schultz v DiNapoli, 137 AD3d at
1455; Matter of Purcell v DiNapoli, 81 AD3d 1069, 1070 [2011];
Matter of Pryor v Hevesi, 14 AD3d 776, 777 [2005]; 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]). Accordingly, we would affirm.

      Turning to the majority's decision to the contrary, the
majority departs from this Court's long-standing recognition that
emergency response personnel often have inherent professional
duties to confront or expose themselves to dangerous conditions
and/or people (see e.g. Matter of Kelly v DiNapoli, 137 AD3d
1470, 1471-1472 [2016]; Matter of Schultz v DiNapoli, 137 AD3d
1454, 1455-1456 [2016]; Matter of Fulton v New York State
Comptroller, 122 AD3d 983, 983-984 [2014], lv denied 24 NY3d 915
[2015]; Matter of Carpenter v DiNapoli 104 AD3d 1037, 1038
[2013]; Matter of Reynolds v DiNapoli, 97 AD3d 892, 893 [2012];
Matter of Jarosz v DiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of
Rykala v New York State Comptroller, 92 AD3d 1077, 1077 [2012];
Matter of Huether v Regan, 155 AD2d at 861; Matter of Daly v
Regan, 97 AD2d at 576; but see Matter of Kelly v DiNapoli, 137
AD3d at 1472-1473 [Garry, J., dissenting]). As a direct result,
this Court's jurisprudence now reaches disparate results based
upon whether a firefighter inhales toxic gases while fighting a
fire, in which case there is no accident (see Matter of Schultz v
DiNapoli, 137 AD3d at 1456; Matter of Huether v Regan, 155 AD2d
at 861; Matter of Daly v Regan, 97 AD2d at 576), or whether a
firefighter inhales toxic gases while providing emergency medical


sufficient basis to confirm respondent's determination (see
Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [2015]; Matter
of Bleeker v New York State Comptroller, 84 AD3d 1683, 1684
[2011], lv denied 17 NY3d 709 [2011]).
                              -9-                  522020

assistance to people overcome by such gases, in which case there
is an accident. Because firefighters who also provide emergency
medical assistance will generally – as is the case here – have
equivalent duties to risk exposure to chemical gases while
fighting fires as while providing emergency medical assistance,
the majority's distinction is arbitrary.

      More generally, we reject the majority's conclusion that
respondent could not reasonably rely on the combined proof of
petitioner's job description and his relevant training to reach
the conclusion that his injuries from exposure to chemical gases
resulted from risks inherent in the ordinary course of his
duties. It is difficult to imagine proof that is more probative
in establishing a petitioner's inherent professional duties than
his or her actual job description. Moreover, an employer's
devotion of time and resources to training an employee as to a
particular professional risk provides a clear indication of an
employer's actual expectations regarding the employee's duties.
Our deferential standard of review in cases such as this means
little if, in reality, this Court will replace respondent's
judgment with its own even when respondent relies on strong
objective evidence not subject to hindsight bias in determining
the scope of a petitioner's duties.

     Devine, J., concurs.



      ADJUDGED that the determination is annulled, without costs,
and matter remitted to respondent for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
