Lead Opinion
OPINION OF THE COURT
Petitioners in these article 78 proceedings have suffered disabling injuries during the course of their employment as New York City police officers. The issue in each case is whether the injury was the natural and proximate result of an accidental injury entitling the petitioner to an accident disability pension. The Board of Trustees denied accident disability pensions by a 6-6 vote and awarded ordinary disability pensions.
Petitioner McCambridge was a detective in the New York City Police Department. On November 8, 1979 he
Petitioner Knight was a patrolman in the New York City Police Department. On April 15,1979, while performing his duties, petitioner was about to enter his patrol car when he slipped on wet pavement, fell backwards and injured his left elbow. Surgical repair of the elbow was required and Patrolman Knight is permanently disabled from performing his duties as a result. The Medical Board found that the injury was accidentally sustained.
The Appellate Division affirmed judgments dismissing the petition in each case. In Knight the court referred to the language of our decision in Matter of Lichtenstein v Board of Trustees (57 NY2d 1010, 1012) which stated that an injury would not be accidental if it “occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties”. On the basis of that statement, the court found that petitioner had not sustained an accidental injury when he slipped on the pavement because the injury was sustained during the performance of his regular duties and resulted from a risk inherent in the job. The judgment dismissing the petition in McCambridge was affirmed by the Appellate Division on the authority of the court’s ruling in Knight. The error made by the Appellate Division and the dissent is in focusing on the petitioner’s job assignment, not on the precipitating cause of injury.
In order to obtain accident disability retirement, a petitioner must establish that he suffered physical or mental incapacitation “as a natural and proximate result of an accidental injury received in * * * city-service” (Administrative Code of City of New York, § B18-43.0). Not every
Respondents contend that the court is bound by the decision of the Board of Trustees after a 6-6 vote (see Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of City of New York v Schoeck, 294 NY 559). The court may set aside a denial of accident benefits, however, when it concludes that the applicant is entitled to them as a matter of law.
Accordingly, in each case the order of the Appellate Division should be reversed, with costs, the petition
In response to the assertion of the dissent that these cases should be remitted to the Board for its reconsideration of the claims for accident death benefits, it suffices to note that if the Board were to deny the claims we would be obliged to vacate its determination as erroneous. In each case we conclude as a matter of law that there was an accident.
Dissenting Opinion
In reconsidering its decision, the Board should determine whether the injuries sustained by the petitioners were the result of a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’”. (Matter of Lichtenstein v Board of Trustees, supra, at p 1012.) In applying this newly adopted standard of accidental injury to these cases, it is for the Board to say in the first instance from all the facts and circumstances present whether the injuries complained of here resulted from sudden, fortuitous mischances that were unexpected and out of the ordinary. To say, as the majority does, that the injuries complained of by petitioners were accidentally sustained, as a matter of law, within the meaning of the Administrative Code of the City of New York (§ B18-43.0), deprives the Board of making this factual determination in the first instance.
It is the sole province of the Board to determine, applying the Lichtenstein legal standard of accidental injury, whether the injuries complained of here were the result of an event which was “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”, and not for this court to say that they were. Even assuming that petitioners’ injuries resulted from sudden fortuitous mischances that were unexpected and injurious on impact, as will usually be the case whenever a person sustains a non-self-inflicted injury, it cannot reasonably be said, as a matter of law, that the injuries complained of here were the result of events which were “out of the ordinary”.
Petitioner Knight was entering his patrol car when he slipped and fell, injuring his elbow. It is difficult to imagine what could be more ordinary and routine than a patrolman entering his patrol car. In a case indistinguishable from this, a Comptroller’s determination that a janitor who slipped, fell and injured himself while performing ordinary duties did not suffer an accidental injury was not arbitrary or capricious. (Matter of Covet v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606.) It would seem to follow that in this case, while reasonable minds might differ as to whether or not petitioner Knight suffered an accidental injury within the meaning of section B18-43.0 of the Administrative Code of the City of New York, it cannot be said, as a matter of law, that petitioner sustained an accidental injury. (See Matter of Meyer v Regan, 99 AD2d 582.)
For all these reasons, I would reverse and remit to the Board of Trustees to reconsider the claims of the petitioners in light of our decision in Matter of Lichtenstein (supra).
In each case: Order reversed, with costs, petition granted and matter remitted to Supreme Court, New York County, with directions to remand to respondents for further proceedings in accordance with the opinion herein.