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, Acting Attorney General, Albany(William E. Storrs of counsel), for respondents.__________Lynch, J.P.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 assigned to thetransportation unit, filed an application for performance of dutydisability retirement benefits (see Retirement and SocialSecurity Law § 607-c) contending that he was permanently disabledas a result of, among other things, an injury to his neck.Specifically, petitioner asserted that he sustained disablinginjuries in June 2012 when the fully shackled inmate that he wasassisting fell upon exiting a transport van and landed on top ofhim. Respondent New York State and Local Employees’ RetirementSystem denied petitioner’s application upon the ground that hisalleged disability “was not the result of an act of any inmate.”Following a hearing and redetermination, the Hearing Officerupheld the denial, finding that “the inmate’s act of slipping andfalling on [petitioner] while exiting the van . . . [did] notconstitute ‘an act of an inmate’ as that term is used in[Retirement and Social Security Law] § 607-c.” RespondentComptroller adopted the Hearing Officer’s decision, and this CPLRarticle 78 proceeding ensued.As the applicant, petitioner was required to establish thathis alleged incapacity “was ‘the natural and proximate result ofany act of any inmate’” (Matter of White v DiNapoli, 153 AD3d1080, 1081 [2017], quoting Retirement and Social Security Law §607-c [a]; see Matter of Traxler v DiNapoli, 139 AD3d 1314, 1314[2016]; Matter of Parish v DiNapoli, 89 AD3d 1315, 1316 [2011]).To that end, petitioner had to demonstrate that his claimedinjuries “were caused by direct interaction with an inmate” and,further, were “caused by some affirmative act on the part of theinmate” (Matter of DeMaio v DiNapoli, 137 AD3d 1545, 1546 [2016][internal quotation marks and citations omitted]; see Matter ofStevens v DiNapoli, 155 AD3d 1294, 1295 [2017]; Matter of Traxlerv DiNapoli, 139 AD3d at 1315), i.e., some sort of volitional ordisobedient act (compare Matter of Traxler v DiNapoli, 139 AD3dat 1315, with Matter of Stevens v DiNapoli, 155 AD3d at 1295-1296, and Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058-1059[2015], and Matter of Esposito v Hevesi, 30 AD3d 667, 668[2006]). This petitioner failed to do.Petitioner, who had been transporting inmates for 20 yearsand was aware that there was “a good possibility” that an inmatewould slip upon exiting the transport van, testified that, as thefully shackled inmate exited the van on the day in question,“[h]e completely [went] over.” Petitioner attributed theinmate’s fall to either the inmate slipping and losing hisfooting or the inmate’s shackles catching on something as heexited the van. In describing the incident, petitionertestified, “[W]hen [the inmate] came out of the vehicle, it wasspontaneous. I believe that the chains from his shackle[s]somehow got caught up on the latch, . . . I believe the chainmust have hit that. He completely [went] over.” Upon furtherinquiry, petitioner acknowledged that other inmates had fallenunder similar circumstances in the past, i.e., due to theshackles catching on part of the exit door, stating, “It doesn’thappen often but it does happen.” Noticeably absent frompetitioner’s testimony — and the record as a whole — is anyindication that the inmate, upon exiting the van, disobeyed adirect order, failed to comply with any policy or procedure orotherwise engaged in any sort of affirmative act that, in turn,proximately caused petitioner’s injuries (see Matter of Traxler vDiNapoli, 139 AD3d at 1315; Matter of Laurino v DiNapoli, 132AD3d at 1059). As losing one’s footing — without more — does notconstitute an affirmative act (see Matter of Stevens v DiNapoli,155 AD3d at 1295-1296), petitioner’s application was properlydenied. Petitioner’s remaining arguments, including hisassertion that the Comptroller engaged in an unexplaineddeparture from prior precedent, have been examined and found tobe lacking in merit.Devine, Mulvey, Aarons and Pritzker, JJ., concur.ADJUDGED that the determination is confirmed, withoutcosts, and petition dismissed.ENTER:Robert D. MaybergerClerk of the Court
