                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   522428
________________________________

In the Matter of DAVID M.
   MAGISTRO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


     Russell A. Schindler, Kingston, for petitioner.

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

                             __________


Mulvey, 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 the City of
Poughkeepsie Police Department. On the morning of December 1,
2010, he was dispatched to a residence where a burglary had
occurred. Upon his arrival, he spoke to the homeowner,
documented items that were missing and inspected the residence
for possible entry points and crime scene evidence. He went to
inspect a small porch that was connected to the house by wooden
stairs that were partially covered by an overhanging roof. It
                               -2-                522428

was raining that morning and, when petitioner stepped on the top
step, he slipped and slid down the handrail before eventually
catching himself. As a result of injuries that he sustained, he
filed an application for accidental disability retirement
benefits.1 His application was initially denied on the ground
that the December 1, 2010 incident did not constitute an accident
within the meaning of the Retirement and Social Security Law.
Petitioner requested a hearing and redetermination and, following
such hearing, a Hearing Officer denied his application for the
same reason. Respondent subsequently adopted the Hearing
Officer's decision with supplemental conclusions of law, and this
CPLR article 78 proceeding ensued.

      We confirm. 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 Beckley v Nitido, 123 AD3d 1330, 1331
[2014]). The burden is on the party seeking benefits to
establish that the injury-producing event was accidental in
nature (see Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185
[2015]; Matter of Hoehn v New York State Comptroller, 122 AD3d
984, 986 [2014]). Notably, in order to be deemed accidental, an
injury must result from a risk that is not an inherent part of
one's regular job duties (see Matter of Schultz v DiNapoli, 137
AD3d 1454, 1455 [2016]; Matter of Fulton v New York State
Comptroller, 122 AD3d 983, 983-984 [2014], lv denied 24 NY3d 915
[2015]) or from a hazard that cannot be reasonably anticipated
(see Matter of Bennett v DiNapoli, 119 AD3d 1310, 1311 [2014];
Matter of Cavallo v DiNapoli, 117 AD3d 1366, 1367 [2014]).

      Petitioner's search of the residence following the burglary
was a part of his routine duties as a police officer. He
acknowledged that it was lightly raining when he conducted the
search and, although he did not see water pooling on the stairs,


     1
        Petitioner also filed an application for performance of
duty disability retirement benefits, which was granted.
                              -3-                  522428

he believed that they were wet. He stated that he did not
realize that the stairs were slippery until his foot slipped on
the top stair. Notwithstanding this, petitioner could have
reasonably anticipated the slippery condition of the stairs under
the circumstances presented (see Matter of Greco v DiNapoli, 123
AD3d 1366, 1368 [2014]; Matter of Randolph v DiNapoli, 85 AD3d
1288, 1289 [2011]). Although petitioner theorized that the
stairs were slippery because they had been painted with interior
paint and were not constructed in accordance with the applicable
building code, this presented a credibility issue for respondent
to ultimately resolve (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 Assmann v DiNapoli, 95 AD3d
1487, 1488 [2012]). Given that substantial evidences supports
respondent's determination, we decline to disturb it.

     Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
