December 16, 2020

Denying an application for accidental disability retirement resulting from an injury not a risk of the applicant's ordinary employment duties held arbitrary and capricious

The Medical Board [Board] of the New York City Employees' Retirement System [NYCERS] evaluated a New York City Department of Sanitation employee [Applicant] then serving as a Sanitation General Superintendent, Deputy Chief, who had applied for accidental disability retirement [ADR] benefits. After  reviewing Applicant's medical records the Board determined that, although the Applicant was disabled due to his right knee injury, the incident that caused Applicant's injury was not an accident. The Board recommended that the Applicant be denied ADR benefits and, instead, be granted ordinary disability retirement [ODR] benefits.*

The Board of Trustees [Trustees] of the NYCERS adopted the findings and recommendation of the Board and disapproved Applicant's ADR application for the reasons advanced by the Board.

Applicant filed a CPLR Article 78 petition seeking judicial review of the Trustees'  denial of his application for ADR. Supreme Court granted Applicant's petition to the extent of "annulling the determination and remitting the matter" to the NYCERS for further proceedings and NYCERS, the Trustees, the Board, and the City of New York appealed the Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the Supreme Court's decision, explaining:

1. Retirement and Social Security Law §605-b[b][1] provides that a [New York City] Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident,** not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service ...  shall be retired for accidental disability;"

2. Not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits; and

3. Applicant's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing.

The Appellate Division concluding that Applicant's injury was not the result of a risk of his ordinary employment duties but rather the result of a sudden, fortuitous, and unexpected precipitating event, and noting "the unrefuted credible evidence regarding Applicant's ordinary employment duties," held that "the challenged determination was made without sound basis in regard to the facts, and thus, the [Trustee's] determination was arbitrary and capricious."

Accordingly, the court sustained the Supreme Court's determination granting Applicant's petition to the extent of, in effect, "annulling the determination and remitting the matter for further proceedings."

* ODR benefits are typically less generous than ADR benefits.

** Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division noted that an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The decision is posted on the Internet at