                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   523115
________________________________

In the Matter of VINCENT E.
   SOMUK,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   November 16, 2016

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

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Nicholas
Switach of counsel), for petitioner.

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

                             __________


Clark, 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 officer for 20 years. On
September 14, 2007, he stopped a vehicle as part of a routine
safety check and was issuing a ticket when he was struck in the
mid-back by the side mirror of a passing motor vehicle.
Petitioner received medical treatment for this injury and was out
of work for approximately 8½ months, but he returned to work
thereafter and was able to perform his regular job duties. On
                              -2-                523115

August 19, 2010, petitioner and another officer responded to a
call concerning a man who was acting irrationally and running
down the street partially naked. The other officer managed to
take the man to the ground and attempted to restrain him as he
struggled violently. Petitioner was applying handcuffs when the
man struck and kicked him, resulting in an injury to petitioner's
lower back. Petitioner was unable to return to work following
this incident.

      Thereafter, petitioner applied for accidental disability
retirement benefits with respect to both incidents and his
application was denied by the New York State and Local Police and
Fire Retirement System. Petitioner requested a hearing and, at
its conclusion, the Hearing Officer upheld the denial, finding
that the August 19, 2010 incident did not constitute an accident
within the meaning of the Retirement and Social Security Law and
that petitioner was not permanently incapacitated as the natural
and proximate result of the accident occurring on September 14,
2007. Respondent adopted the Hearing Officer's decision and this
CPLR article 78 proceeding ensued.

      Initially, it is well settled that, for purposes of the
Retirement and Social Security Law, an accident is "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] [internal quotation marks and citation
omitted]; see Matter of Lamb v DiNapoli, 139 AD3d 1312, 1312-1313
[2016]). The burden is on the party seeking benefits to
establish that the injury-producing event was an accident within
the meaning of the Retirement and Social Security Law (see Matter
of Magistro v DiNapoli, 142 AD3d 750, 751 [2016]; Matter of
Schoales v DiNapoli, 132 AD3d 1184, 1185 [2015]). Notably,
injuries that occur as the result of activities undertaken in the
ordinary course of one's job duties or that are due to an
inherent risk of the work performed have been found not to be an
accident (see Matter of Kelly v DiNapoli, 137 AD3d 1470, 1471
[2016]; Matter of Beckley v Nitido, 123 AD3d 1330, 1331 [2014]).

      With regard to the August 2010 incident, petitioner was
performing his regular police duties of responding to a call and
                              -3-                523115

attempting to subdue an emotionally unstable individual at the
time that he was injured. Physical contact with this individual,
including being struck and kicked, could certainly be anticipated
and was an inherent risk of the work performed (see Matter of
Fulton v New York State Comptroller, 122 AD3d 983, 984 [2014], lv
denied 24 NY3d 915 [2015]; Matter of Quartucio v DiNapoli, 110
AD3d 1336, 1337 [2013]; Matter of Jarosz v DiNapoli, 95 AD3d
1500, 1501 [2012]). Accordingly, substantial evidence supports
respondent's finding that this incident did not constitute an
accident under the Retirement and Social Security Law.

      Although there is no dispute that the September 2007
incident did constitute an accident, the issue is whether
petitioner's permanent incapacitation was the natural and
proximate result thereof. The burden is on petitioner to
establish that it was (see Matter of O'Connor v DiNapoli, 89 AD3d
1367, 1368 [2011]; Matter of Caruana v DiNapoli, 78 AD3d 1302,
1303 [2010], lv denied 16 NY3d 705 [2011]). Here, although the
record contains medical notes and related documentation prepared
by physicians who treated petitioner after the two incidents in
question, these physicians did not prepare medical reports
addressing whether the September 2007 accident caused
petitioner's permanent disability nor did they testify at the
hearing (see e.g. Matter of Garceau-Scopelitis v New York State
Comptroller, 24 AD3d 934, 936 [2005]). The only physician to
provide a specific medical opinion in this regard was John
Mazella, the orthopedist who prepared a written report after
examining petitioner on behalf of the Retirement System. After
reviewing the medical documentation, which indicated, among other
things, that petitioner had made a full recovery and was able to
return to full duty after the September 2007 accident, Mazella
opined that such accident was not the competent producing cause
of petitioner's disability. His opinion is consistent with the
diagnostic reports revealing that petitioner sustained injuries
to different portions of his spine following each incident. In
view of the foregoing, substantial evidence supports the finding
that petitioner's permanent incapacitation was not the natural
and proximate result of the September 14, 2007 accident,
particularly in the absence of medical evidence to the contrary
(see generally Matter of Morgan v Hevesi, 46 AD3d 1007, 1008
[2007], lv denied 11 NY3d 701 [2008]). Accordingly, we find no
                              -4-                  523115

reason to disturb respondent's determination.

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



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
