Calendar Date: April 24, 2018Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Edelstein & Grossman, New York City (Jonathan I. Edelsteinof counsel), for petitioner.Barbara D. Underwood, Attorney General, Albany (William E.Storrs of counsel), for respondents.__________Devine, J.Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) toreview a determination of respondent Comptroller denyingpetitioner’s application for performance of duty disabilityretirement benefits.Petitioner, a county correction officer, applied forperformance of duty disability retirement benefits (seeRetirement and Social Security Law § 607-c) contending that shewas permanently disabled due to injuries sustained in March 2012when the intoxicated inmate that she was transporting stumbledand fell on her. Her application was denied on the ground thather alleged disability “was not the result of an act of anyinmate.” Following a hearing and redetermination, the HearingOfficer agreed and recommended upholding the denial. RespondentComptroller accepted the Hearing Officer’s decision withsupplemental conclusions of law, and this CPLR article 78proceeding ensued.The underlying facts are not in dispute. Petitioner andanother correction officer were dispatched to a local courthouseto pick up an unruly inmate, who was either “intoxicated or highon drugs.” The inmate was handcuffed and was sufficientlyimpaired that she could not walk up stairs and needed assistanceto navigate the two steps leading into the back of the transportvan. When the trio arrived at the local jail, the inmate wasunable to stand on her own and required petitioner’s assistanceto get on her feet. The inmate attempted to exit the transportvan on her own, at which point she fell forward and landed onpetitioner, who was trying to break the inmate’s fall. Theinmate thereafter struggled to get off of petitioner but made noattempt to punch or kick petitioner.Petitioner, as the applicant, bore the burden ofdemonstrating that her alleged incapacity “was ‘the natural andproximate result of any act of any inmate’” (Matter of White vDiNapoli, 153 AD3d 1080, 1081 [2017], quoting Retirement andSocial Security Law § 607-c [a]; see Matter of Traxler vDiNapoli, 139 AD3d 1314, 1314 [2016]). The phrase “any act ofany inmate” is not statutorily defined (Retirement and SocialSecurity Law § 607-c [a]), but we have interpreted this languageto require a showing that the claimed injuries “were caused bydirect interaction with an inmate” and, further, were “caused bysome affirmative act on the part of the inmate” (Matter of DeMaiov DiNapoli, 137 AD3d 1545, 1546 [2016] [internal quotation marksand citations omitted]; accord Matter of Stevens v DiNapoli, 155AD3d 1294, 1295 [2017]; see Matter of Traxler v DiNapoli, 139AD3d at 1315). An “affirmative act” need not be intentionallyaimed at the officer (see Matter of DeMaio v DiNapoli, 137 AD3dat 1546), but does need to be volitional or disobedient in amanner that proximately causes his or her injury (see Matter ofStevens v DiNapoli, 155 AD3d at 1295-1296; Matter of Traxler vDiNapoli, 139 AD3d at 1315; Matter of Laurino v DiNapoli, 132AD3d 1057, 1058-1059 [2015]; Matter of Esposito v Hevesi, 30 AD3d667, 668 [2006]).Here, there is no question that petitioner sustained herclaimed injuries while attempting to assist the subject inmate inexiting the transport van, i.e., through direct interaction withan inmate. Petitioner’s injuries did not, however, “occur[]contemporaneously with, and flow[] directly, naturally andproximately from, . . . [any] disobedient and affirmative act” onthe part of the inmate (Matter of Traxler v DiNapoli, 139 AD3d at1315 [internal quotation marks and citation omitted]; see Matterof Stevens v DiNapoli, 155 AD3d at 1295-1296). Indeed, by allaccounts, the inmate in question could barely walk or standunassisted (cf. Matter of Laurino v DiNapoli, 132 AD3d at 1058-1059; Matter of Esposito v Hevesi, 30 AD3d at 668), and thehearing testimony reflects that she simply lost her footing andfell (see Matter of Stevens v DiNapoli, 155 AD3d at 1295-1296).While petitioner makes much of the fact that her job dutiesincluded insuring the subject inmate’s safety, “[t]he mere factthat . . . petitioner was injured while she was in the presenceof an inmate, or while she was engaged in providing a service forthe benefit of an inmate, is insufficient, without more, tosatisfy the statutory standard” (Matter of Hernandez v New YorkCity Employees’ Retirement Sys., 148 AD3d 706, 708 [2017]).Petitioner’s remaining contentions, including her assertion thatthe Comptroller engaged in an unexplained departure from priorprecedent, have been examined and found to be lacking in merit.Accordingly, the determination is confirmed.Lynch, J.P., Mulvey, Aarons and Pritzker, JJ., concur.ADJUDGED that the determination is confirmed, withoutcosts, and petition dismissed.ENTER:Robert D. MaybergerClerk of the Court
