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.

Audits and reports issued during the week ending October 1, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 1, 2021. 

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Town of Lyndon – Town Clerk’s Collections (Cattaraugus County) The clerk generally recorded, remitted and reported collections accurately and in a timely manner. Collections were deposited accurately but the clerk did not always make deposits in a timely manner. Collections totaling $7,050 or 49% of the collections recorded from Jan. 1, 2020 through May 6, 2021 were not deposited within three days, as required. The board did not perform an annual audit of 2020 records, as required.

Town of Machias – Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not adequately perform his financial duties and cannot provide support for almost $1.6 million in interfund loans. Although interfund loans must be repaid by the close of each fiscal year, interfund loans have grown from $246,280 in 2015 to almost $1.6 million as of Dec. 31, 2019. The supervisor also did not provide adequate oversight of the bookkeeper. The supervisor did not provide detailed monthly financial reports to the board. Auditors found the supervisor did not review monthly bank reconciliations. In addition, the supervisor did not prepare and file the annual financial reports for 2019 and 2020 with the Office of the State Comptroller in a timely manner.

Town of Stanford – Financial Management (Dutchess County) The board did not properly manage the town’s financial condition and did not adopt realistic budgets. The board adopted an unbalanced 2020 budget that was missing information and misleading, which resulted in a 58% decrease in real property taxes. The board also adopted a 2021 budget with a $749,159 increase in the tax levy over the prior year and levied more taxes than necessary to fund general fund operations. In addition, the board exceeded its fund balance policy limit by $645,366. 

OTHER REPORTS

On October 1, 2021, State Comptroller Thomas P. DiNapoli, Madison County District Attorney William Gabor and New York State Police Superintendent Kevin P. Bruen announced that a second former state police mechanic [Mechanic #2] has pleaded guilty to corrupting the government in the third degree, a felony, and petit larceny, a misdemeanor.  At the time of his plea, he paid back $12,865 in restitution and was placed on interim probation.

This is the second guilty plea that has resulted from the Comptroller's and the District Attorney's joint investigation.    

Mechanic #2 was found to be breaking the law and will be held fully accountable. One of two non-sworn civilian employees responsible for maintaining police vehicles, Mechanic #2 he was convicted of ordering auto parts and tools for personal use on the state police-paid account at United Auto Supply.

DiNapoli’s analysis of thousands of United Auto Supply invoices found that between April 2015 and October 2020, there were over $54,000 in inappropriate purchases on the state police account.

Earlier another civilian mechanic [Mechanic #1] pleaded guilty to felony corrupting the government in the third degree and was sentenced to interim felony probation. As part of his plea, Mechanic #1 paid back $20,000. He is due back in court for sentencing in December.

State police said they recovered more than $4,800 worth of state funded auto supplies, tools and parts at Mechanic #2's home.

Mechanic #2 retired during the investigation and was not employed with the state police at the time of his arrest. He had been employed by the state police for at least 30 years.   

Mechanic #2 appeared before Judge Patrick O’Sullivan in Madison County Court. He is due back in court on Dec. 2, 2021.

Amendments to Education Law §310 procedures for submitting appeals to the Commissioner seeking for the removal of school officers proposed

The proposed action would amend Part 276 and §277.1 of Title 8 NYCRR pursuant to Education Law, §§101, 207, 305, 310 and 311 with respect to Education Law §310 regarding appeals to the Commissioner and the initiation of proceedings seeking the removal of school officers.

NO HEARING(S) SCHEDULED

The text of the proposed rule amendments and any required statements and analyses may be obtained from Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.

Data, views or arguments may be submitted to: Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Public comment will be received until 45 days after publication of this notice. [Published in the NYS Register on September 29, 2021].