                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 24, 2016                    521498
________________________________

In the Matter of JAMES J.
   KELLY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   January 14, 2016

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

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Jason
Lewis of counsel), for petitioner.

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

                             __________


McCarthy, 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 denying petitioner's
application for accidental disability retirement benefits.

      Petitioner, a police officer, injured his neck and shoulder
while rescuing people trapped in a house due to damage caused by
Hurricane Sandy. He thereafter applied for accidental disability
retirement benefits and the application was denied on the ground
that the incident did not constitute an accident within the
meaning of the Retirement and Social Security Law. Ultimately,
respondent upheld the denial and petitioner commenced this CPLR
                              -2-                521498

article 78 proceeding challenging that determination.

      We confirm. Respondent's determination will be upheld if
supported by substantial evidence (see Matter of Roth v DiNapoli,
105 AD3d 1183, 1184 [2013]). For the purposes of Retirement and
Social Security Law § 363, an injury that results from "a risk of
the work performed" is not an accident (Matter of Schoales v
DiNapoli, 132 AD3d 1184, 1185 [2015] [internal quotation marks
and citation omitted]; see Matter of Hyland v New York State
Comptroller, 121 AD3d 1149, 1149 [2014]). Consistent with this
principle, this Court has long recognized that police officers
face many substantial risks in the regular course of their duties
that are inherent to the work that they perform (see e.g. Matter
of Schoales v DiNapoli, 132 AD3d at 1186; Matter of Lanzetta v
DiNapoli, 130 AD3d 1109, 1009-1110 [2015]; Matter of Scofield v
DiNapoli, 125 AD3d 1086, 1086-1087 [2015]; Matter of Dicioccio v
DiNapoli, 124 AD3d 1170, 1170-1172 [2015]; Matter of Bennett v
DiNapoli, 119 AD3d 1310, 1310-1312 [2014]; Matter of Carpenter v
DiNapoli, 104 AD3d 1037, 1038 [2013]; Matter of Franks v New York
State & Local Retirement Sys., 47 AD3d 1115, 1115-1116 [2008];
Matter of Sansone v Levitt, 67 AD2d 1044, 1044-1045 [1979]).

      According to petitioner, he was considered a first
responder to emergency calls and had a duty to assist injured
persons. The Uniform Police Officer Job Description that
governed petitioner's job confirmed petitioner's testimony to the
extent that it dictated that his professional responsibilities
included "[a]ssist[ing] any injured persons."1 Petitioner


    1
        In our view, this description sets forth the ordinary and
anticipated demands of petitioner's job, and the dissent's
conclusion that petitioner's assistance of injured persons here
was "well outside the ordinary expectations and anticipated
demands of petitioner's job duties" fails to account for the fact
that petitioner's actions unambiguously fell within his official
job description. Further, a rational factfinder was not required
to ignore this official job description in favor of the self-
serving job description that petitioner provided in his
testimony. Notably, petitioner's testimony to the effect that he
was not professionally obligated to assist the injured persons
                              -3-                521498

acknowledged that, due to the hurricane, his supervisors had
impressed upon him that his professional duty extended to
responding to emergency calls involving life and limb.
Petitioner explained that he answered a call regarding occupants
of a house who were trapped due to a tree falling onto and
through the home. Petitioner acknowledged that, when he arrived,
the home was not a stable structure and debris was still falling,
but he explained that he had to go in to help the trapped
occupants. Petitioner was thereafter injured while throwing
debris off of the trapped occupants and while holding up debris
that continued to fall during that rescue effort. Accordingly, a
reasonable conclusion to draw from the record is that the threat
that compelled petitioner's response as a police officer and
first responder – the dangerous condition in the home – was the
same threat that ultimately caused petitioner's injuries. Given
this substantial evidence that petitioner's injury resulted from
foreseeable risks inherent to being a police officer whose duty
it was to assist injured persons, we will not disturb
respondent's determination (see Matter of Schoales v DiNapoli,
132 AD3d at 1186; Matter of Lanzetta v DiNapoli, 130 AD3d at
1009-1110; Matter of Scofield v DiNapoli, 125 AD3d at 1086-1087;
Matter of Dicioccio v DiNapoli, 124 AD3d at 1170-1172).

     Devine and Clark, JJ., concur.


Garry, J. (dissenting).

      We respectfully dissent, as we find that the circumstances
of petitioner's injury were of an extraordinary, urgent, and
wholly unanticipated nature, and the resulting risks to him were
beyond the scope of his anticipated duties, even given the
potentially dangerous nature of his work as a police officer.
Petitioner's injuries resulted from circumstances that were
"unusual, unexpected and not a risk inherent in the ordinary


here was not supported by any further evidence, and a rational
person could conclude that it contradicted the official job
description.
                              -4-                521498

performance of [his] regular duties" (Matter of Leuenberger v
McCall, 235 AD2d 906, 907 [1997]; see Matter of Pratt v Regan, 68
NY2d 746, 747-748 [1986]). He was providing urgent emergency
services in the midst of a hurricane. Upon arriving at the
scene, he found a partially destroyed, unstable structure with
two walls and half of the roof missing; it was raining, there
were high winds, and debris and trees were continuing to fall.
One resident was already dead and others were trapped inside.
Due to the ongoing storm conditions and surrounding devastation,
petitioner soon learned that there would be no further aid or
assistance available – no one else was able to reach the scene.
The record reveals without contradiction that absent these highly
exceptional circumstances, and in the ordinary course of
petitioner's duties, he would neither have entered the unstable
structure nor attempted the rescue that caused his injuries.

      Petitioner's general job duties necessarily included
assisting injured persons. However, it was not his personal duty
to directly provide aid in every circumstance. The
uncontroverted testimony demonstrated that petitioner's job
duties did not encompass entering unstable structures under
unsafe circumstances to carry out rescues; to the contrary, he
was specifically instructed not to do so. Indeed, petitioner
lacked any training to carry out such rescues, a compelling
factor in this analysis. The established department protocol
called for petitioner to assess the safety of a scene upon
arrival. If his assessment revealed that a structure was
unstable, he was not to enter it. It was instead his duty to
call for personnel with the necessary training. While awaiting
their arrival, petitioner's further duty was to maintain the
perimeter, prevent people from entering, call for supervisors or
ambulances if necessary and, in short, provide the safest
possible conditions to allow people possessing the appropriate
skills and training to carry out the rescue.

      Here, petitioner was unable to comply with the established
protocol due to the unusually severe storm in progress. Upon
calling for assistance, petitioner learned that the fire
department would be substantially delayed, the technical rescue
team was two hours away, and other police officers were unable to
report. There were but two rescuers available – petitioner and
                              -5-                521498

his partner. Therefore, despite their lack of training and the
instability of the structure, they entered the house and
attempted the rescue. Petitioner felt an injury in his shoulder
as he threw debris off the trapped and injured residents, but
continued to work. Shortly thereafter, an overhead rafter began
to fall toward petitioner's partner and the residents. Grabbing
it, petitioner immediately felt additional pain in his shoulder
and neck. This injury thus resulted directly from the
instability of the structure; but for the intense urgency, it may
have been possible to shore up the structure and decrease the
risk of injury to the rescuers. These unusual facts reveal the
wholly unexpected nature of the event, in which "time was of the
essence" and petitioner was confronted with the immediate need to
gain access to an unstable structure despite his lack of
appropriate training, and place the occurrence well outside the
ordinary expectations and anticipated demands of petitioner's job
duties (Matter of Cantone v McCall, 289 AD2d 863, 864 [2001]).
In clear contrast to the recent authority relied upon by the
majority, there is simply nothing in the underlying circumstances
that may be considered either routine or ordinary, even for a
police officer (compare Matter of Schoales v DiNapoli, 132 AD3d
1184, 1885-1186 [2015]; Matter of Lanzetta v DiNapoli, 130 AD3d
1109, 1110 [2015]; Matter of Dicioccio v DiNapoli, 124 AD3d 1170,
1171 [2015]).

      For the same reasons, we further find that respondent's
determination to the effect that petitioner's injury resulted
from "voluntarily attempting a task routinely performed by other
officers" (Matter of Caramante v Regan, 129 AD2d 850, 852 [1987],
lv denied 69 NY2d 611 [1987]; see Matter of Woods v McCall, 240
AD2d 839, 839 [1997], lv denied 90 NY2d 808 [1997]) was
unsupported by substantial evidence. Accordingly, we would grant
the petition and annul the determination.

     Lynch, J., concurs.
                              -6-                  521498

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
