                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     522238
________________________________

In the Matter of SHARON A.
   CAETANO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      Flaherty & Shea, Buffalo (James P. Shea of counsel), for
petitioner.

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

                             __________


Lahtinen, 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 disability retirement benefits.

      In September 2012, petitioner, a senior election clerk for
the Erie County Board of Elections, applied for disability
retirement benefits alleging that she was permanently
incapacitated from performing her job duties due to injuries she
suffered as the result of a fall she took at work in 2007. The
application was initially denied on the grounds that petitioner
had less than 10 years of service credit and that she had not
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established that the 2007 incident constituted an accident within
the meaning of the Retirement and Social Security Law.
Petitioner requested a hearing and redetermination and, following
a hearing, the Hearing Officer upheld the denial. Upon review,
respondent Comptroller adopted the Hearing Officer's decision,
and petitioner then commenced this CPLR article 78 proceeding.

      We confirm. A member of respondent New York State and
Local Employees' Retirement System may apply for disability
retirement benefits if the member has "at least [10] years of
total service credit" (Retirement and Social Security Law § 605
[b] [1]). Members with less than 10 years of total service
credit may also apply for disability retirement benefits if they
can show that their disability was "the natural and proximate
result of an accident not caused by his [or her] own willful
negligence sustained in the performance of his [or her] duties"
(Retirement and Social Security Law § 605 [b] [3]; see Matter of
Quevedo v Office of the N.Y. State Comptroller, 101 AD3d 1209,
1209 [2012]).

       Initially, petitioner contends that the Comptroller erred
in calculating her total service credit. "The Comptroller is
charged with the responsibility of determining service credits
for retirement purposes and his determination will be upheld if
rational and supported by substantial evidence" (Matter of Cohen
v New York State & Local Employees' Retirement Sys., 117 AD3d
1370, 1370 [2014] [internal quotation marks and citation
omitted], lv dismissed and denied 24 NY3d 1028 [2014]; see Matter
of Westmorland v New York State & Local Retirement Sys., 129 AD3d
1402, 1403 [2015]). Moreover, petitioner has the burden of
establishing an entitlement to additional service credit (see
Matter of Westmorland v New York State & Local Retirement Sys.,
129 AD3d at 1403-1404; Matter of DeLuca v New York State & Local
Employees' Retirement Sys., 48 AD3d 876, 877 [2008]).

      Based upon petitioner's employment records, the Comptroller
determined that she had only attained 9.95 years of total service
credit. Petitioner contends that the yearly service credits in
her records were inaccurate because they did not take into
account time that she was out of work and being paid workers'
compensation benefits in lieu of her salary. Although she based
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her contention on her belief that Erie County credited her with
that time for retirement purposes, the employment records do not
reflect that, and she did not present any authority supporting
her contention. Petitioner further relies on an October 2010
form letter from the Comptroller informing her that she had
reached or was about to reach "[10] or more years of membership
or credited service" (emphasis added) with the Retirement System.
The letter pertains to the fact that petitioner would no longer
have contributions to the Retirement System taken out of her
paycheck. Inasmuch as this letter may only have acknowledged
that petitioner had been a member of the Retirement System for 10
years, it is not necessarily indicative of petitioner having
reached 10 years of total service credit. In light of
petitioner's employment records, the Comptroller's determination
that she had not attained 10 years of total service credit is
rational and supported by substantial evidence and, in our view,
petitioner did not satisfy her burden of establishing that she
was entitled to additional service credit.

      Petitioner was, therefore, required to demonstrate that her
disability was the natural and proximate result of a work-related
accident and the Comptroller's determination in that regard will
be upheld if supported by substantial evidence (see Matter of
Quevedo v Office of the N.Y. State Comptroller, 101 AD3d at 1209;
Matter of Gonzalez v New York State & Local Employees' Retirement
Sys., 79 AD3d 1562, 1562-1563 [2010]). 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 Kenny v DiNapoli, 11 NY3d 873,
874 [2008] [internal quotation marks and citations omitted]; see
Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185 [2015]).
"[A]n injury is not accidental in nature if it occurs as the
result of an applicant's routine employment duties and does not
involve an unexpected event" (Matter of Cirrone v DiNapoli, 80
AD3d 1069, 1070 [2011]; see Matter of Kenny v DiNapoli, 11 NY3d
at 874). Petitioner testified that, on the day of the incident,
she was walking down a hallway at work when she suddenly slipped
and fell. According to petitioner, she did not know what she
slipped on but that the floor must have been wet from a leaking
garbage bag. She acknowledged, however, that she did not observe
that the floor was wet before or after she fell and her clothes
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were not wet after she fell. We note that incident reports
prepared by petitioner and her supervisor on the day of the
incident do not reference the floor being wet, only that the
floor was dirty and had a dried stain on it. In light of this
evidence, the Comptroller's determination that petitioner's
injuries were sustained as the result of her own misstep or
inattention, and not because of an accident, is supported by
substantial evidence and will not be disturbed (see Matter of
Magliato v DiNapoli, 78 AD3d 1457, 1458 [2010]; Matter of Bergin
v McCall, 284 AD2d 792, 792 [2001]). Petitioner's remaining
claims have been considered and found to be without merit.

     Egan Jr., Lynch, Devine and Mulvey, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
