Murray v. New York State ComptrollerMurray v. New York State Comptroller
Petitioner, a police officer, allegedly sustained various injuries to his left hip and lower back following a December 1998 incident wherein he fell while pursuing a fleeing suspect down a dimly lit street. Following a period of disability, he returned to work in a restricted duty capacity until September 2005, when he experienced a jolt of pain to his lower back while stepping out of the shower. In December 2005, petitioner applied for accidental and performance of duty disability retirement benefits alleging that he was permanently incapacitated as the result of the December 1998 incident. Those applications were separately denied upon the grounds that the December 1998 incident did not constitute an accident within the meaning of
Preliminarily, we reject petitioner‘s assertion that the Comptroller improperly relied upon the written reports of Leon Sultan, the orthopedic surgeon who evaluated petitioner on behalf of respondent New York State and Local Police and Fire Retirement System but did not testify at the hearings. Petitioner was well aware that the Retirement System was considering submitting Sultan‘s reports in lieu of testimony and raised no objection in this regard until his posthearing memorandum of
Turning to petitioner‘s respective applications, “an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties” (Matter of Hardy v DiNapoli, 82 AD3d 1490, 1490 [2011] [internal quotation marks and citations omitted]; see Matter of Henry v DiNapoli, 82 AD3d 1446, 1447 [2011]; Matter of Crisera v New York State Comptroller, 79 AD3d 1573 [2010], lv denied 16 NY3d 712 [2011]). The pursuit of a fleeing suspect plainly qualifies as an ordinary employment duty of a police officer (see Matter of Melendez v New York State Comptroller, 54 AD3d 1128, 1129 [2008], lv denied 12 NY3d 706 [2009]), and petitioner acknowledged that he had chased suspects in the dark before and was expected to do so under any type of weather or road conditions. Under these circumstances, substantial evidence supports the Comptroller‘s determination that petitioner‘s injury was a risk inherent in the performance of his ordinary employment duties and, therefore, the December 1998 incident did not qualify as an accident (see Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484 [2011]; Matter of Crisera v New York State Comptroller, 79 AD3d at 1573-1574; Matter of Melendez v New York State Comptroller, 54 AD3d at 1129-1130; Matter of Fischer v New York State Comptroller, 46 AD3d 1006 [2007]).
As to petitioner‘s application for performance of duty disability retirement benefits, the parties acknowledge that the relevant inquiry is whether petitioner, having served in a restricted duty capacity since 1999, is permanently incapacitated from the performance of those limited—and essentially clerical—duties (see Matter of Keil v New York State Comptroller, 66 AD3d 1317, 1318 [2009]; Matter of Riguzzi v Hevesi, 16 AD3d 822, 823 [2005];
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.