A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits
City of Lackawanna v Nitido, 2016 NY Slip Op 05220, Appellate Division, Third Department
The City of Lackawanna filed an accidental disability retirement application* on behalf of Kenneth A. Drozdowski, a firefighter employed by the City, after deciding that Drozdowski was permanently disabled as a result of a number of injuries sustained in various incidents during the course of his duties as a firefighter.
The New York State Policemen's and Firemen's Retirement System denied Lackawanna’s application and the City appealed. An administrative hearing officer concluded that the incidents giving rise to the City’s application did not constitute accidents within the meaning of the Retirement and Social Security Law [RSSL] and denied its application. The Hearing Officer's, which determination was sustained by the Deputy Comptroller. Lackawanna next filed a CPLR Article 78 petition challenging the Deputy Comptroller’s decision.
Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division confirm the Deputy Comptroller’s ruling, explaining that “[i]n order for an incident to constitute an accident for purposes of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and citing Matter of Schultz v DiNapoli, 137 AD3d 1454, the Appellate Division observed that “[t]he injury must not result from an activity undertaken in the performance of ordinary employment duties and must not be an inherent risk of such job duties.”
With respect to the first event submitted by Lackawanna in support of its application, at the hearing Drozdowski had testified that he had responded to a structure fire where an obese individual was trapped on the second floor. Given the urgent situation and in order to evacuate the individual, Drozdowski, with the assistance of other firefighters, strapped the individual to a spine board and, because the individual was too large to fit through the doorway horizontally, attempted to maneuver the individual through the doorway in a vertical position and down the stairs.
When the other firefighters lost their grip on the board, Drozdowski was left alone holding the board and was injured when he slid down the stairs while trying to control the momentum of the individual's weight and prevent the individual from sustaining further injury.
The Appellate Division ruled that the record established that “evacuating occupants of all sizes” is an ordinary part of Drozdowski's duties as a firefighter and thus substantial evidence supports the Deputy Comptroller's conclusion that this incident was not an accident.”
Regarding a second incident described in support of the City’s application, Drozdowski had testified that he had tripped on a three-inch concrete step in the fire station and hit his head on a desk, resulting in an injury to his neck. Although Drozdowski noted that the floor had just been mopped and that he had walked through some puddles on the floor just before falling, the Appellate Division said that “[n]o defective condition in the step was alleged, and Drozdowski acknowledged that he was aware of the step and had, in fact, tripped on it before.”
Under these circumstances, said the court, substantial evidence supports the Deputy Comptroller's conclusion that the injuries sustained in this incident resulted from Drozdowski's own misstep or inattention, which did not constitute an accident for purposes of the Retirement and Social Security Law.”
Considering a third incident the City advanced in support of the application it had filed on behalf of Drozdowski -- an injury sustained by Drozdowski in the course of his responding to an emergency medical service call involving an “obese, intoxicated and combative” individual -- the Appellate Division concluded that the record established that Drozdowski was performing his normal his duties when he sustained those injuries, which arose when in while providing emergency medical service to an individual and that he was aware of the combative nature of the individual. Thus, said the court, substantial evidence supported the Deputy Comptroller's conclusion that the incident did not constitute an accident within the meaning of the RSSL.
The Appellate Division decided that the City “did not sustain its burden of demonstrating that the events producing the injuries resulted from accidents” and sustained the Deputy Comptroller's determination.**
* Subdivision 2 of §207-a of the General Municipal Law provides, provides that in the event a firefighter receiving §207-a.1 benefits does not file an application for accidental disability retirement or line of duty disability retirement benefits, the fire district or municipal corporation employing the firefighter may file such an application of behalf of the firefighter. If such an application is denied, the fire district or municipal corporation employing the firefighter may appeal that determination. A similar provision with respect a police officer as defined in Subdivision 1 of General Municipal Law §207-c is set out in Subdivision 2 of §207-c of the Retirement and Social Security Law.
** The decision is silent as to whether Drozdowski was found eligible for line of duty disability retirement.
The decision is posted on the Internet at:
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