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Kehoe v. City of New York

81 N.Y.2d 815 Court N.Y. Decision date 1993-02-18 English

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In the Matter of Kevin Kehoe, Appellant, v City of New York et al., Respondents.
Decided February 18,1993
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APPEARANCES OF COUNSEL
Scheine, Fusco, Brandenstein & Rada, P. C, Commack (Milan Rada and John A. DeMaro of counsel), for appellant.
O. Peter Sherwood, Corporation Counsel of New York City (Anthony M. Dillof of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner’s application for accidental disability retirement was properly denied. Accidental disability retirement is avail

p. 817
able under the New York City Administrative Code when a City employee is injured as a result of " 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010 , 1012). It is not available for "injuries sustained while performing routine duties but not resulting from unexpected events” (see, Matter of McCambridge v McGuire, 62 NY2d 563 , 568). No evidence was presented refuting respondent City’s claim that petitioner’s injuries resulted solely from the performance of his usual duties as a sanitation worker. The Board of Trustees’ acceptance of the Medical Board’s finding that petitioner was injured while performing his usual duties was, therefore, not arbitrary and capricious and the accidental disability retirement was properly denied. Petitioner has made no argument concerning the authority of the Medical Board to determine whether petitioner was injured while performing his usual tasks.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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