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CORRECTION OFFICER NOT ENTITLED TO TWO-YEAR LEAVE OF ABSENCE; THERE WAS SUPPORT IN THE RECORD FOR THE FINDING PETITIONER’S PHYSICAL CONFRONTATION WITH AN INMATE WAS NOT AN ASSAULT WITHIN THE MEANING OF THE CIVIL SERVICE LAW (SECOND DEPT).

The Third Department, over a two-justice dissent, determined petitioner correction officer was not entitled to a two-year workers’ compensation leave of absence because there was support in the record for the finding petitioner was not assaulted. Petitioner was injured trying to prevent an inmate from swallowing contraband:

… [R]espondent advised petitioner that, pursuant to Civil Service Law § 71, his employment would be terminated … because his absence from employment … exceeded one cumulative year. Petitioner asserted through counsel that he was entitled to a two-year leave of absence under Civil Service Law § 71 because his injuries resulted from an assault sustained during the performance of his duties. * * *

Pursuant to Civil Service Law § 71, an employee who “has been separated from [his or her] service by reason of a disability resulting from occupational injury” is “entitled to a leave of absence for at least one year.” If, however, “an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years” … . * * *

Although the record demonstrates that the parolee was combative and refused orders to stop resisting and to surrender the contraband, there is no indication that the parolee directed any intentional physical act of violence toward petitioner before, during or after petitioner’s application of the body hold. Given the absence of such record evidence, respondent’s determination that petitioner’s injuries were not the result of an assault sustained during the course of employment had a sound basis in reason and, thus, was rational … . Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 2020 NY Slip Op 00652, Third Dept 1-30-20

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