                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                 517970
________________________________

In the Matter of KEVIN T.
   HOLDEN,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 15, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Sean
Dooley of counsel), for petitioner.

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

                             __________


Egan Jr., 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 which denied petitioner's
application for accidental disability retirement benefits.

      Petitioner, a police lieutenant, was injured in June 2010
when he twisted his ankle on the edge of a drainage grate as he
was exiting his police vehicle in the precinct parking lot.
After petitioner's subsequent application for accidental
disability retirement benefits was denied, he requested a
rehearing and redetermination. Following that hearing, the
Hearing Officer concluded that the incident was not an accident
                               -2-                517970

within the meaning of Retirement and Social Security Law § 363
and denied petitioner's application. Upon review, respondent
accepted the Hearing Officer's decision and denied the
application. Petitioner then commenced this proceeding pursuant
to CPLR article 78 to challenge respondent's determination.1

      We confirm. As the applicant, petitioner bore the burden
of establishing his entitlement to accidental disability
retirement benefits, and respondent's determination in this
regard – if supported by substantial evidence – will not be
disturbed (see Matter of Walion v New York State & Local Police &
Fire Retirement Sys., 118 AD3d 1215, 1215 [2014]; Matter of
DiGiacomo v DiNapoli, 115 AD3d 1138, 1139 [2014]). In this
regard, injuries arising out of a petitioner's own misstep or
inattention do not constitute an accident (see Matter of
Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of
Madaffari v DiNapoli, 104 AD3d 1047, 1047 [2013]; Matter of Meyer
v New York State Comptroller, 92 AD3d 1122, 1122 [2012]).

      Here, although petitioner testified that he was not parked
in his usual parking space at the time that the incident
occurred, he acknowledged that he was aware of the drainage
grate, as he was required to walk past it to get to his customary
parking space – a space that he had utilized for the past nine
years. Petitioner further acknowledged that he looked before
stepping out of his patrol vehicle on the day in question. To
the extent that petitioner contended that his injury was the
result of stepping on a missing piece of pavement abutting the
drainage grate, we note that the accident report prepared on the
day of the incident made no mention of this alleged defect, and
petitioner's testimony as to whether he observed the particular
condition of the pavement prior to exiting his vehicle was
inconsistent (see generally Matter of Assmann v DiNapoli, 95 AD3d
1487, 1488 [2012]; Matter of Hardy v DiNapoli, 82 AD3d 1490, 1491
[2011]). Thus, inasmuch as petitioner failed to demonstrate that
the condition of the grate was not readily observable or that his
injury was caused by anything other than his own inattention or


     1
        Petitioner's ordinary disability retirement became
effective February 8, 2012.
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misstep, respondent's determination is supported by substantial
evidence (see Matter of Madaffari v DiNapoli, 104 AD3d at 1047-
1048; Matter of Assmann v DiNapoli, 95 AD3d at 1488).

     Peters, P.J., Stein, Garry and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
