Majority
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
Petitioner worked as a firefighter for the City of Buffalo Fire Department for approximately 18 years. On June 2, 2008, he was injured when he inhaled toxic fumes while fighting a fire at a pool warehouse where hazardous chemicals were stored. Thereafter, he filed an application for accidental disability retirement benefits based upon this incident as well as another that occurred on February 26, 2013. His application was denied on the ground that the incidents in question did not constitute accidents within the meaning of Retirement and Social Security Law § 363. Petitioner requested a hearing and redetermination and later withdrew his application with respect to the February 26, 2013 incident. At the conclusion of the hearing, the Hearing Officer found that the June 2, 2008 incident constituted an accident entitling him to accidental disability retirement benefits. Respondent Comptroller, however, disagreed and denied petitioner’s application. This CPLR article 78 proceeding ensued.
We confirm. It is well settled that in order for an incident to constitute an accident within the meaning of the Retirement and Social Security Law, it must be a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010 , 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97 , 100 [1958], affd 7 NY2d 222 [1959]; see Matter of Stimpson v Hevesi, 38 AD3d 979 , 980 [2007]). Significantly, it must result from an activity that is not undertaken in the performance of ordinary job duties (see Matter of Baron v DiNapoli, 57 AD3d 1202 , 1203 [2008]; Matter of Pryor v Hevesi, 14 AD3d 776 , 776 [2005]) and that is not an inherent risk of such job duties (see Matter of Walion v New York State & Local Police & Fire Retirement Sys., 118 AD3d 1215 , 1215-1216 [2014]; Matter of Carrella v DiNapoli, 98 AD3d 1220 , 1221 [2012]). Notably, the burden is on the petitioner to demonstrate that the precipitating event constituted an accident, and the Comptroller’s determination in this regard will be upheld if supported by substantial evidence (see Matter of Walion v New York State & Local Police & Fire Retirement Sys., 118 AD3d at 1215 ; Matter of Hunce v DiNapoli, 106 AD3d 1427 , 1428 [2013]).
Here, petitioner contends that the injuries he sustained in the June 2, 2008 warehouse fire were the result of an accident because the sprinkler system was not operating properly, the
Petitioner’s remaining contentions are without merit.
Garry, Rose, Devine and Clark, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.
* We note that petitioner had previous experience combating fires involving hazardous materials and was aware that the warehouse contained pool chemicals.
Cases cited
- Lichtenstein v. Board of Trustees 57 NY2d 1010 at 1012 p. 1455
- Arthur A. Johnson Corp. v. Indemnity Insurance 6 AD2d 97 at 100 p. 1455
- Arthur A. Johnson Corp. v. Indemnity Insurance Co. of North America 7 NY2d 222 p. 1455
- Stimpson v. Hevesi 38 AD3d 979 at 980 p. 1455
- Baron v. DiNapoli 57 AD3d 1202 at 1203 p. 1455
- Pryor v. Hevesi 14 AD3d 776 at 776 p. 1455
- Walion v. New York State & Local Police & Fire Retirement System 118 AD3d 1215 at 1215-1216 p. 1455
- Carrella v. Dinapoli 98 AD3d 1220 at 1221 p. 1455
- Hunce v. DiNapoli 106 AD3d 1427 at 1428 p. 1455
- Huether v. Regan 155 AD2d 860 at 861 p. 1456
- Daly v. Regan 97 AD2d 575 at 576 p. 1456