                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    521239
________________________________

In the Matter of JAMES MACE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   February 10, 2016

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




      Sanders & Sanders, Cheektowaga (Harvey P. Sanders of
counsel), for petitioner.

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




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

      Petitioner, a motor equipment mechanic with the Department
of Transportation, sustained a disabling injury when, in the
process of clearing snow from vehicles in the work bay and
shoveling that snow over floor drains to melt, the shovel he was
using caught on a floor drain and abruptly stopped his momentum
causing pain in his back. Petitioner filed an application for
disability retirement benefits and, as part of his application,
                               -2-                521239

sought enhanced benefits for accidental disability retirement
benefits claiming that the incident constituted an accident
within the meaning of the Retirement and Social Security Law.
Petitioner's application was denied on the basis that the
incident did not constitute an accident,1 prompting petitioner to
request a hearing and redetermination. Following a hearing, the
Hearing Officer concluded that the incident in question was not
an accident and denied petitioner's application. Based upon the
Hearing Officer's recommendation, respondent Comptroller issued a
final determination denying petitioner's application and this
CPLR article 78 proceeding ensued.

      Petitioner bears the burden of establishing that the injury
is a result of an accident, which means that, "for purposes of an
accidental disability retirement application, the event must
emanate from a risk that is not an inherent element of the
petitioner's regular employment duties" (Matter of Walion v New
York State & Local Police & Fire Retirement Sys., 118 AD3d 1215,
1215 [2014] [internal quotation marks and citation omitted]).
The Comptroller's determination in that regard will not be
disturbed if it is supported by substantial evidence (see Matter
of Schoales v DiNapoli, 132 AD3d 1184, 1186 [2015]; Matter of
Walion v New York State & Local Police & Fire Retirement Sys.,
118 AD3d at 1215). Here, petitioner testified that shoveling the
snow in the work bay over to the floor drains was part of his
regular employment duties. He testified that, on the day of the
incident, there were a few feet of snow on the floor. He was
trying to push the snow as hard as he could when the shovel lost
friction with the floor and sped up along the floor, until it
abruptly hit the drain. As noted by the Hearing Officer, the
risk that the shovel sliding across the floor could catch on the
drain is not an unforeseen or unexpected occurrence, but, rather,
is an inherent risk in the performance of such duty that could
reasonably be anticipated. Further, although petitioner
testified that the drains were recessed into the floor, there is
nothing in the record establishing any defect in the drain.
Under these circumstances, we find that substantial evidence


     1
        That part of petitioner's application seeking ordinary
disability retirement benefits was granted.
                              -3-                  521239

supports the Comptroller's determination that the incident was
not "a sudden fortuitous mischance which was unexpected and out
of the ordinary" and, therefore, did not constitute an accident
(see Matter of Hyland v New York State Comptroller, 121 AD3d
1149, 149-150 [2014]; Matter of Hunce v DiNapoli, 106 AD3d 1427,
1428-1429 [2013]; Matter of Little v DiNapoli, 85 AD3d 1273,
1274-1275 [2011]). Petitioner's remaining contentions have been
reviewed and do not warrant disturbing the Comptroller's
determination.

     Rose, Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
