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October 4, 2021

An injury resulting from the failure to follow proper safety protocols held "sudden, unexpected and not a risk inherent the duties of the position"

A member of the New York State Employees' Retirement System applying for accidental disability retirement benefits has the burden of establishing that the injury he sustained during the incident giving rise to the disability in question was the result of an accident within the meaning of the Retirement and Social Security Law.

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, in the instant appeal challenging the denial of a firefighter's application for accidental disability retirement benefits, said that the Court of Appeals has defined an accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact."

As the court held in Matter of Kelly v DiNapoli, 30 NY3d 674, "an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed, but the focus of the determination must be on the precipitating cause of [the] injury, rather than on the petitioner's job assignment."

In this appeal the Appellate Division considered a number of incidents suffered by a firefighter [Petitioner] at various time in the course of his performing firefighting duties cited his application for accidental disability retirement benefits.

Petitioner's application was initially denied, which decision was upheld by a Hearing Officer, who concluded that none of the incidents described by Petitioner constituted an accident within the meaning of the Retirement and Social Security Law. The Comptroller adopted the Hearing Officer's decision, and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller's ruling with respect to all but one incident ... an incident in which Petitioner "was struck by the master stream of water while fighting a fire inside an automotive garage."

Petitioner testified that the master stream of water that struck him and resulted in his disability:

a. was then being pumped at an average rate of 1,500 gallons per minute;

b. it was against standard operating procedure to spray a master stream of water into a burning structure while firefighters were inside because the force could be lethal; and

c. he had no warning that the master stream of water was being utilized to fight the fire until he "actually saw it a split second before getting hit."

The Appellate Division, noting that there "is no record support for the Hearing Officer's finding that [Petitioner] knew in advance that a master stream was being operated ... such that he could have left the building," concluded that "[u]nder these circumstances, the event that precipitated [Petitioner's] injuries was sudden, unexpected and not a risk inherent in [Petitioner's] regular duties as the incident would not have occurred if proper safety protocols had been followed."

Accordingly, the court opined that this event constituted an accident within the meaning of the Retirement and Social Security Law, thus entitling Petitioner to accidental disability retirement benefits and ruled  "that part of the [Comptroller's] determination finding otherwise must be annulled" and the matter remitted to Comptroller "for further proceedings not inconsistent with this Court's decision".

Click HERE to access the text of the Appellate Division's decision.

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