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Register v. McCall

222 A.D.2d 930 Court N.Y. App. Div. Decision date 1995-12-21 English

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p. 930
In the Matter of Barbara Register, Petitioner, v H. Carl McCall, as Comptroller of the State of New York, Respondent.
[635 NYS2d 768]

—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 worked as a housekeeper for the Office of Mental Retardation and Developmental Disabilities. She injured her lower back and right knee when she lost control of a stripping machine she was using to remove wax from some floors. Respondent denied her application for accidental disability retirement benefits finding that the incident which caused her injury

p. 931
was not an "accident” within the meaning of Retirement and Social Security Law § 63. We agree. We do not find that petitioner’s injury, which resulted from her inability to operate a machine she was using in the course of her duties, was a " 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010 , 1012, quoting Johnson Corp. v Indemnity Ins. Co., 6 AD2d 97 , 100). Accordingly, we find that substantial evidence supports respondent’s determination. We have considered petitioner’s claim that the Hearing Officer improperly disregarded her post-hearing affidavit and find it to be without merit.

Mikoll, J. P., Mercure, Casey, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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