                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   519852
________________________________

In the Matter of EDWARD
   SCHOALES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Michael
J. Catallo of counsel), for petitioner.

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

                             __________


Devine, 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 police sergeant in Rockland County
for 15 years. He filed an application for accidental disability
retirement benefits based upon two incidents, one on December 1,
2004 and the second on May 3, 2011. Petitioner's application was
denied on the basis that neither of the two incidents constituted
an accident within the meaning of Retirement and Social Security
Law § 363. Following a hearing, the Hearing Officer also
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concluded that the incidents in question were not accidents and
recommended that petitioner's application be denied. Based upon
the Hearing Officer's recommendation, respondent issued a final
determination denying petitioner's application and this CPLR
article 78 proceeding ensued.

      We confirm. 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]
[internal quotation marks and citations omitted]; see Matter of
Greco v DiNapoli, 123 AD3d 1366, 1367 [2014]). The burden is on
the party seeking benefits to establish that the injury producing
event was accidental (see Matter of Dicioccio v DiNapoli, 124
AD3d 1170, 1171 [2015]; Matter of Greco v DiNapoli, 123 AD3d at
1367). In order to be deemed accidental, an injury must not have
been "the result of activities undertaken in the ordinary course
of one's job duties" but, rather, "must be due to a precipitating
accidental event which is not a risk of the work performed"
(Matter of Pommerville v McCall, 6 AD3d 1025, 1026 [2004]; see
Matter of Fulton v New York State Comptroller, 122 AD3d 983, 983
[2014], lv denied 24 NY3d 915 [2015]). Furthermore, where the
incident involves a slip and fall, the determinative inquiry is
"whether the condition that caused the slip could have been
'reasonably anticipated'" (Matter of Sammon v DiNapoli, 97 AD3d
952, 953 [2012], quoting Matter of Murphy v New York State
Comptroller, 92 AD3d 1022, 1023 [2012]; see Matter of Dicioccio v
DiNapoli, 124 AD3d at 1171).

      Dealing first with the December 1, 2004 incident, which
occurred at approximately 4:00 a.m., petitioner had responded to
a security alarm and was inspecting the exterior of a building in
a light rain. He indicated that he had climbed up onto a
concrete loading dock to check an overhead door and was getting
ready to lower himself off of it when his foot slipped on the
edge, which had become icy, and he fell to the ground. Inasmuch
as petitioner could have reasonably foreseen that an elevated
concrete surface would be icy on a rainy winter night,
substantial evidence supports respondent's conclusion that the
December 1, 2004 incident was not an accident (see Matter of
Messina v New York State & Local Employees' Retirement Sys., 102
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AD3d 1068, 1068-1069 [2013], lv denied 21 NY3d 855 [2013]; Matter
of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17
NY3d 711 [2011]).

      Turning to the May 3, 2011 incident, petitioner stated that
he and another officer had responded to a private residence where
a morbidly obese woman had fallen. The two officers attempted to
lift her to her feet, and petitioner injured his back when she
failed to assist them by moving her feet under her body.
Petitioner indicated that he had responded to such calls for
assistance before and the associated risks were, therefore,
clearly a part of his routine job duties. In view of this, and
absent an unexpected event, substantial evidence also supports
respondent's conclusion that the May 3, 2011 incident was not an
accident (see Matter of Herlihy v DiNapoli, 75 AD3d 892, 893
[2010]; Matter of Lucian v McCall, 7 AD3d 905, 906 [2004]).

     Garry, J.P., Rose and Lynch, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
