Butler v. McCall — 247 A.D.2d 709

Majority

p. 709

In the Matter of Wayne Butler, Petitioner, v H. Carl McCall, as New York State Comptroller, Respondent.

[668 NYS2d 762]

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.

p. 710

Petitioner was employed, by the Orange County Department . of Public Works as a mechanical equipment operator when he injured his back and neck while operating a jackhammer that became stuck in concrete he was attempting to cut up. Petitioner’s subsequent application for accidental disability retirement benefits was denied on the ground that he had not suffered an “accident” within the meaning of Retirement and Social Security Law § 605 (b) (3). We confirm. An “accident” has been defined as 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, affd 7 NY2d 222 ). Unless the injury results from an event that would not ordinarily be anticipated in the context of the worker’s employment, it cannot be defined as an “accidental” injury (see, Matter of Talerico v McCall, 239 AD2d 863 ; Matter of Keller v Regan, 212 AD2d 856 , 858).

In the instant matter, the record discloses that operating a jackhammer was a regular part of petitioner’s job responsibilities and that it was not uncommon in petitioner’s experience for a jackhammer to become stuck. In view of this, we conclude that the event that precipitated petitioner’s injuries cannot be considered to have been out of the ordinary and, accordingly, the determination denying his application for benefits will not be disturbed (see, Matter of Cadiz v McCall, 236 AD2d 767 ).

Mikoll, J. P., Crew III, White, Yesawich Jr. and Spain, JJ., concur.

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

Cases cited

Lichtenstein v. Board of Trustees 57 NY2d 1010 N.Y. 1982-11-11 at 1012 p. 710
Arthur A. Johnson Corp. v. Indemnity Insurance 6 AD2d 97 N.Y. App. Div. 1958-06-24 at 100 p. 710
Arthur A. Johnson Corp. v. Indemnity Insurance Co. of North America 7 NY2d 222 N.Y. 1959-12-30 p. 710
Talerico v. McCall 239 AD2d 863 N.Y. App. Div. 1997-05-22 p. 710
Keller v. Regan 212 AD2d 856 N.Y. App. Div. 1995-02-02 at 858 p. 710
Stewart v. Ferris 236 AD2d 767 N.Y. App. Div. 1997-02-27 p. 710