Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Bartlett LLP, White Plains (Warren J. Roth of counsel), forpetitioner.Barbara D. Underwood, Attorney General, Albany (William E.Storrs of counsel), for respondent.__________Pritzker, 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 denying petitioner’sapplication for accidental disability retirement benefits.Petitioner, a firefighter, was injured while exiting hisvehicle after responding to an emergency call on November 23,2010. He was injured again on May 22, 2011 while disembarking afire truck. Petitioner thereafter applied for accidentaldisability retirement benefits and performance of duty disabilityretirement benefits for both incidents, and both applicationswere denied. Thereafter, with regard to the 2011 incident, theNew York State and Local Retirement System conceded thatpetitioner was permanently incapacitated and petitioner concededthat it was not an accident and, as a result, petitioner wasgranted performance of duty disability retirement benefits (seeRetirement and Social Security § 363-c). Following a hearingaddressed to whether the 2010 incident was an accident,respondent denied petitioner’s application for accidentaldisability retirement benefits. This CPLR article 78 proceedingensued.We confirm. To qualify as an accident for purposes ofaccidental disability retirements benefits under Retirement andSocial Security § 363, the event causing the incapacitatinginjury must be a “sudden, fortuitous mischance, unexpected, outof the ordinary, and injurious in impact” (Matter of Kelly vDiNapoli, 30 NY3d 674, 681 [2018] [internal quotation marks andcitations omitted]; see Matter of Kowal v DiNapoli, 30 NY3d 1124,1125 [2018]). Consequently, “an injury which occurs without anunexpected event as the result of activity undertaken in theperformance of ordinary employment duties, considered in view ofthe particular employment in question, is not an accidentalinjury” (Matter of Kelly v DiNapoli, 30 NY3d at 681 [internalquotation marks and citation omitted]). Here, petitionertestified that his fire company received an alarm call to respondto a residence and, when he parked his vehicle at the curb andstepped out of the driver’s side onto the uneven asphalt curb, hetwisted his ankle. Importantly, petitioner was engaged in anactivity undertaken in the performance of his ordinary employmentduties, exiting his vehicle after responding to an emergencycall, and there was no “precipitating accidental event which wasnot a risk of the work performed” that caused the injury, such asa loss of balance or a slip on a wet surface (id. at 682[internal quotation marks and citation omitted]; compare Matterof Starnella v Bratton, 92 NY2d 838, 839 [1998]; Matter of Prattv Regan, 68 NY2d 746, 747 [1986]; Matter of McCambridge vMcGuire, 62 NY2d 563, 568 [1984]; Matter of Sammon v DiNapoli, 97AD3d 952, 952-953 [2012]). To that end, a fall “as a result ofone’s own misstep, without more, is not so out-of-the-ordinary orunexpected as to constitute an accidental injury” (Matter ofStarnella v Bratton, 92 NY2d at 839; see Matter of Kelly vDiNapoli, 30 NY3d at 683). As the incident was a risk inherentin petitioner’s regular job duties, it was not unexpected (seeMatter of Kelly v DiNapoli, 30 NY3d at 683). Given thatsubstantial evidence supports the determination, it will not bedisturbed (see id. at 684).1McCarthy, J.P., Egan Jr., Aarons and Rumsey, JJ., concur.ADJUDGED that the determination is confirmed, withoutcosts, and petition dismissed.ENTER:Robert D. MaybergerClerk of the Court
