The First Department, over a dissent, determined that a police officer who tripped over a fire hose at the scene of a fire was entitled to ordinary (ODR) , as opposed to accidental (ADR), disability retirement benefits:
Not every line of duty injury will result in an award of ADR … . When the denial of ADR benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is required to uphold the denial unless “it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident” … . Thus, the issue before us is whether, reviewing the record, it can be said, as a matter of law, that petitioner’s disability was the natural and proximate result of a service-related accident.
In the context of ADR benefits, the Court of Appeals has defined an accident as a ” sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'” while ” an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury'” … . It is petitioner’s burden to establish that his injuries resulted from an accident as defined in the context of ADR … .
Normal risks in most jobs are not unexpected * * *.
While it is true that petitioner was a police officer, not a firefighter, it cannot be said as a matter of law that his ordinary employment duties did not include responding to a fire emergency. As the Board of Trustees had before it some credible evidence of lack of causation, it did not err as a matter of law in concluding that petitioner’s disability was not the result of an accident within the meaning of Administrative Code § 13-252 … . Finally, contrary to the dissent, we do not regard the charging of fire hoses at the scene of a fire as a sudden, fortuitous, or unexpected event. Matter of Pastalove v Kelly, 2014 NY Slip Op 05922, 1st Dept 8-21-14