Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of Petition with Accompanying Affidavits and Exhibits 1Respondent’s Verified Answer to Petition with Accompanying Affidavits and Exhibits 2Petitioner’s Memorandum of Law in Support of the Verified Petition 3Respondent’s Memorandum of Law 4Petitioner’s Reply Memorandum of Law In Further Support of the Verified Petition 5DECISION/ORDER The issue raised by this Article 78 proceeding is whether a sanitation work who became disabled as a result of getting his foot stuck in an unseen crack in the sidewalk, while collecting garbage, is entitled to accidental disability retirement benefits (“ADR benefits”) pursuant to Retirement and Social Security Law (“RSSL”) §605-b.The Board of Trustees (“Trustees” or “respondent”) of the New York City Employees’ Retirement System (“NYCERS”) denied the application of Salvatore Cuccia (“petitioner” or “Cuccia”), a sanitation worker, for ADR benefits. The Medical Board of NYCERS (“Medical Board”) had determined that petitioner was disabled from the performance of his duties but recommended that his application for ADR benefits be denied because the disability was not the result of an accidental injury. The Trustees did not dispute that petitioner’s disability was causally related to a right-ankle injury sustained in the course of his duties, but adopted the Medical Board’s recommendation that it was not an “accident.”Petitioner, while on the job, fractured and dislocated his right ankle when his foot got caught in an unseen crack in the sidewalk as he was walking downhill, carrying paper, cardboard, metal, and plastic recyclables to a sanitation truck. He had multiple surgeries which included screws and other hardware. Petitioner stated in his application for ADR benefits that the sidewalk was icy, which was consistent with the statements of two eyewitnesses in the Line-of-Duty Injury Report, who also reported that the sidewalk was icy. However, when petitioner appeared before the Medical Board, he maintained that his fall was due to the unseen crack, and not the ice.This case has its genesis in an earlier Article 78 petition filed by petitioner on November 4, 2015, challenging the July 15, 2015 decision of the Trustees to deny ADR benefits, which affirmed the Medical Board’s recommendation of denial because it deemed the incident not to be an accident. By decision dated August 19, 2016, Hon. Karen Rothenberg held that the denial of petitioner’s ADR application was arbitrary and capricious because the Trustees failed to articulate a rationale for their conclusory determination that petitioner’s injury was not an accident. Justice Rothenberg remanded the ADR application to the Medical Board for further review and findings as to the nature of the line-of-duty ankle injury. Following the Medical Board’s recommendation, the Trustees met again on April 13, 2017, and came to the same conclusion; i.e., petitioner’s injury was not an accident and he was therefore not entitled to an ADR benefit. Its conclusion was based on the fact that petitioner had been a sanitation worker for many years and traversed many sidewalks, so that encountering a crack in the sidewalk was an ordinary risk of the job.RSSL §605-b provides that a New York City sanitation member who “is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service…shall be retired for accidental disability.” The party seeking ADR benefits bears the initial burden of demonstrating that the incident causing his injury was a line-of-duty accident, and that the incident was not the result of his misstep or inattention. Caetano v. DiNapoli, 140 A.D.3d 1579, 1581 (3d Dept. 2016); Mtr. of Brown v. New York State & Local Retirement Sys., 106 A.D.3d 1437, 1438 (3d Dept. 2013); Coleman v. Board of Trustees of New York City Fire Dep’t, Article 1-B Pension Fund, 224 A.D.2d 522, 523 (2d Dept. 1996).Once the applicant satisfies this threshold burden, the Medical Board must conduct its own medical examination of the applicant, consider the medical evidence submitted by the applicant, and determine whether the applicant is physically or mentally incapacitated for the performance of duties. NYC Adm. Code §13-168(a). The Trustees must then determine the circumstances under which he became incapacitated; i.e., whether it was an accident. Canfora v. Board of Trustees, 60 N.Y.2d 347, 351 (1983); Mtr. of Savallo v. Kelly, 101 A.D.3d 655, 655-656 (1st Dept. 2012). Only if the Trustees deem the injury to have arisen out of accident will the plaintiff be eligible for ADR benefits. NYC Administrative Code §13-252; Caetano, supra, 140 A.D.3d at 1581; Coleman, supra, 224 A.D.2d at 523. The Trustees’ decision will be upheld if it is not arbitrary and capricious and its factual findings are supported by substantial evidence, which in this context means “some credible evidence.” Mtr. of Fragale v. D’Alessandro, 55 A.D.3d 607, 607 (2008); Mtr. of Hernandez v. NYCERS, 148 A.D.3d 706, 707 (2d Dept. 2017).An “accident” is an event that is “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984); Mtr. of Walsh v. Scopetta, 73 A.D.3d 1192, 1193 (2d Dept. 2010). See, Mtr. of Pratt v. Regan, 68 N.Y. 2d 746, 747-748 (1986) (while catching a heel on a running board of a fire truck and losing one’s balance might be considered an inherent risk of being a firefighter, coming down hard on the other foot in pothole was not and therefore the injury was deemed “accidental”); Zajdowicz v. New York State & Local Police & Fire Retirement Sys., 267 A.D.2d 863, 866 (3d Dept. 1999) (injury sustained by firefighter to his knee as he left scene of fire and tripped and fell over protruding piece of concrete would be deemed an accident, as it constituted hazardous condition unrelated to his employment). An injury is not deemed to be a result of an accident when it is a risk which could be expected as the result of activity undertaken in the performance of ordinary employment duties Mtr. of Kelly v. DiNapoli, 30 N.Y.3d 674, 681 (2018); Zajdowicz v. New York State & Local Police & Fire Retirement Sys., 267 A.D.2d 863, 866 (3d Dept. 1999). An expected risk is one that is known, or “ordinary and obvious.” See, Mtr. of Kenny v. DiNapoli, 11 N.Y.3d 873, 874-875 (2008); Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 518 (2d Dept. 1997).Contrary to respondent’s contention, this Court finds that getting one’s foot caught in a hidden crack in the sidewalk while transporting garbage is not an expected risk of petitioner’s employment as a sanitation worker. Petitioner stated that he did not know about the crack, and since he was holding garbage which would have likely blocked his view, it was not obvious. Nor was the risk “ordinary.” Black’s Law Dictionary defines “ordinary” as “[o]ccuring in the regular course of events,” “normal,” and “usual.” Black’s Law Dictionary 1273 (10th ed. 2014). See, Baptiste v. AG United States, 841 F.3d 601, 610-611 (3d Cir. 2016). For example, in Mtr. of Cravotta v. NYCERS, 89 A.D.3d 842, 842-843 (2nd Dept. 2011), the court held that a sanitation worker was not entitled to an ADR benefit when he slipped on a step of a sanitation truck due to a slippery substance from a dump site that formed on his shoe. The court reasoned that “petitioner’s injury was sustained while he was performing his routine duties and was not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law.” Id. See also, Kenny v. DiNapoli, 11 NY3d 873, 874, 874 NYS2d 399 (2008) (when police officer slipped on a wet ramp as he exited restaurant, knowing that the ramp was wet, it was rational to conclude that fall was not an unexpected event and that the petitioner was not entitled to ADR benefits).By contrast, here the crack in the sidewalk in which petitioner’s foot got caught was not known to him or expected. Nor did the Trustees establish at its meeting that the crack was sufficiently visible to render his fall as occurring in the ordinary course of duty. This Court does find that petitioner’s injury was an accident since it was unexpected, out of the ordinary, and injurious in impact.In light of the above, this Court finds that respondent’s determination that the incident was not an accident was not based on “substantial evidence” to the extent that it was not supported by adequate proof that the crack was sufficiently visible to render petitioner’s fall as occurring in the ordinary course of duty. Accordingly, the Trustees’ determination to deny petitioner disability benefits is annulled and respondents are directed to grant petitioner ADR benefits retroactive to May 26, 2017, the date upon which his application was denied. This constitutes the Decision and Order of the Court.Dated: February 22, 2019
