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NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that neglect based upon mother’s mental illness had not been demonstrated:

… [T]he petitioner failed to establish that the mother received inadequate psychiatric treatment for her mental illness, or that her alleged untreated mental illness placed the child at imminent risk of harm. The evidence demonstrated that the mother, who was homeless at the time that she became pregnant and had relapsed into using heroin just a few months earlier, managed to obtain housing at a shelter for high-risk pregnant women, sought out appropriate prenatal care which included visits with a social worker, maintained compliance with a methadone treatment program which included weekly counseling sessions, and regularly took the psychotropic medications that were being prescribed to her by a licensed psychiatrist. The evidence also indicated that the mother interacted appropriately with the child in the hospital following the child’s birth … . The petitioner failed to present competent medical evidence that the treatment the mother was receiving failed to address her mental health needs or was otherwise improper in light of her mental health history … . Matter of Bella S. (Sarah S.), 2018 NY Slip Op 01069, Second Dept 2-14-18

FAMILY LAW (NEGLECT, MENTAL ILLNESS, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the jury should have been instructed that it could consider the actions of the complainant’s husband in this assault case. The defendant raised the justification defense. The altercation leading to the assault charge involved both the complainant and her husband:

… [A] new trial is required because the trial court erroneously declined the defendant’s request that the jury be instructed that it could consider the actions of the complainant’s husband in determining whether the defendant’s use of force was justified … . Contrary to the People’s contention, the error cannot be deemed harmless, as the evidence to establish that the defendant was not justified was not overwhelming, and the jury may have reached a different conclusion had a proper and complete justification instruction been given … . Significantly, the defendant’s case rested on finding that he was justified in responding to the actions of the complainant’s husband … . People v Lijo, 2018 NY Slip Op 01081, Second Dept 2-14-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))/JUSTIFICATION DEFENSE ( JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))

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MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department determined Supreme Court properly denied petitioner’s motion to discontinue the action which challenged the tax assessments of several lots. Supreme Court abused its discretion, however, when it, sua sponte, directed merger of several parcels into a single tax lot:

A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding … , and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” .. . Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner. Matter of Blauvelt Mini-Mall, Inc. v Town of Orangetown, 2018 NY Slip Op 01051, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/DISCONTINUANCE  (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/SUA SPONTE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/REAL PROPERTY TAX LAW (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))

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MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, addressing two issues of first impression, determined: (1) a matter erroneously transferred to a court which did not have subject matter jurisdiction (Civil Court) can be retransferred to the correct court (Supreme Court); and (2) after the matter is retransferred the error cannot be remedied in Supreme Court by adopting the disposition of the Civil Court, which is void. The fact that the Civil Court judge was an Acting Supreme Court Justice did not afford subject matter jurisdiction to the Civil Court:

While Judge Marrazzo, by virtue of his designation as an Acting Justice of the Supreme Court, would have been authorized to preside over the trial of this matter had it been pending in the Supreme Court, the same cannot be said for the trial in the Civil Court where the Administrative Order had no administrative or substantive relevance.

Where subject matter jurisdiction is concerned, courts, including our own, may not cut corners. As a matter of both constitutional adherence and public policy, the Appellate Division must guard against courts acting outside of their subject matter jurisdiction, even if they do so unwittingly, in good faith, or in furtherance of judicial economy. Accordingly, we hold that the duties of an Acting Justice of the Supreme Court directed to matters pending in the Supreme Court operate only as to actions and proceedings pending in that particular court, and not for cases litigated elsewhere. …

… [S]ince the Civil Court was without jurisdiction to try the instant matter, rendering the trial and judgment void, its findings of fact and conclusions of law cannot as a matter of comity, res judicata, law of the case, or otherwise, be recognized by the Supreme Court upon its CPLR 325(b) removal of the action, and cannot provide a basis for the Supreme Court judgment presently on appeal. Caffrey v North Arrow Abstract & Settlement Servs., Inc., 2018 NY Slip Op 01043, Second Dept 2-14-18

CIVIL PROCEDURE (SUBJECT MATTER JURISDICTION, MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/JURISDICTION, SUBJECT MATTER (MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/CPLR 325(b) (SUBJECT MATTER JURISDICTION, MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/SUBJECT MATTER JURISDICTION  (MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))

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MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to compel plaintiff to accept an answer which was two days late should have been granted pursuant to CPLR 2004:

CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” Given the strong public policy favoring the resolution of cases on the merits, “the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists”… . Here, in light of the defendant’s brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer … . Baldwin Rte. 6, LLC v Bernad Creations, Ltd., 2018 NY Slip Op 01039, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ANSWER (CIVIL PROCEDURE, MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 2004 (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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tenant’s failure to report income from a new job to the new york city housing authority was a sufficient reason to terminate her tenancy.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined a tenant’s failure to report her income to the New York City Housing Authority (NYCHA) was sufficient reason to terminate her tenancy, The tenant had pled guilty to petit larceny and agreed to repay the NYCHA $20,000 in installments:

Petitioner is a tenant in a New York City Housing Authority (NYCHA) public housing apartment in Manhattan. In the late 1990s, she became employed, for the first time, as a bookkeeper. She failed to disclose her new earnings to her landlord, each year stating in an affidavit of income that she did not work. This omission allowed petitioner to pay a substantially lower rent than she would have had she revealed the income. …

A vital public interest underlies the need to enforce income rules pertaining to public housing. Despite petitioner’s alleged difficulties if her tenancy is terminated, public housing is of limited availability and there are waiting lists of other families in need of homes, whose situations may be equally sympathetic. If income reporting violations were to be ignored by the NYCHA, there would be … no meaningful deterrent to residents of income-based public housing who misstate their earnings. If residents believe that the misrepresentation of income carries little to no chance of eviction, the possibility of restitution after criminal conviction may not serve adequately to discourage this illegal practice. The deterrent value of eviction, however, is clearly significant and supports the purposes of the limited supply of publicly-supported housing. It follows, then, that NYCHA’s decision to terminate petitioner’s tenancy is not so disproportionate to her misconduct as to shock the judicial conscience. Matter of Perez v Rhea, 2013 NY Slip Op 00953 [20 NY3d 399], CtApp 2-14-13

 

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EVIDENCE OF DEBRIS ON FLOOR WAS SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER DEFENDANTS WERE LIABLE UNDER LABOR LAW 241(6) AND 200, PLAINTIFF STEPPED INTO A HOLE BUT DID NOT KNOW WHETHER THE HOLE WAS OBSCURED BY THE DEBRIS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants were not entitled to summary judgment on the Labor Law 241(6) and Labor Law 200 causes of action. Plaintiff testified he stepped into a hole. He testified the floor was strewn with debris but he did not know if the hole was covered by debris. The court noted that a defendant need not supervise or control plaintiff’s work to be liable under Labor Law 200:

In support of his Labor Law § 241(6) claim against the owner defendants, plaintiff relies 12 NYCRR 23-1.7(e)(2), which states: “Working Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

… Although plaintiff could not state with certainty whether or not the garbage and debris actually covered the hole, when his extensive deposition testimony is viewed in its entirety, an inference may be drawn that strewn garbage and debris obscured his view of the floor and hid the hole from him, even if it did not actually cover it, thereby creating a hazardous condition. …

“Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it” … . Proof of the defendants’ supervision and control over a plaintiff’s work is not required … . Licata v AB Green Gansevoort, LLC, 2018 NY Slip Op 01023, First Dept 2-13-18

LABOR LAW-CONSTRUCTION LAW (EVIDENCE OF DEBRIS ON FLOOR WAS SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER DEFENDANTS WERE LIABLE UNDER LABOR LAW 241(6) AND 200, PLAINTIFF STEPPED INTO A HOLE BUT DID NOT KNOW WHETHER THE HOLE WAS OBSCURED BY THE DEBRIS (FIRST DEPT))

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PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff’s decedent was provided with a harness and told to remain tied off at all times. Plaintiff fell through an opening in the roof when he was not tied off:

Contrary to plaintiff’s argument, a fall through an unguarded opening in the floor of a construction site constitutes a violation of Labor Law § 240(1) only where a safety device adequate to prevent such a fall was not provided … .. A safety line and harness may be an adequate safety device for a person working over an open area or near an elevated edge … .

Defendants established prima facie that plaintiff’s decedent was the sole proximate cause of his accident with evidence that a harness and safety rope system was in place on the roof, that the decedent had been instructed to remain tied off at all times while on the roof, and that he could not have reached the skylight through which he fell if he had remained tied off. Guaman v City of New York, 2018 NY Slip Op 01025, First Dept 2-13-15

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SAFETY LINE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT).

The First Department determined an all-risk artwork insurance policy did not cover contractual liability to purchasers of stolen art which was returned to the owner. In addition, the court determined the allegations in the complaint against the insurance brokers were insufficient to allege a fiduciary relationship:

“[D]efective title is clearly not a physical loss or damage . . . from any external cause” … . Despite the fact that the phrase “loss or damage” in the policy was not qualified by terms such as “direct” or “physical,” “[w]e may not, under the guise of strict construction, rewrite a policy to bind the insurer to a risk that it did not contemplate and for which it has not been paid” … . “Title insurance has been regarded as a separate type of contract not falling within any of the three basic classes of insurance. . . . It is not reasonable to interpret a policy so broadly that it becomes another type of policy altogether” … . …

The … causes of action, against the insurance broker defendants, were properly dismissed, with leave to replead  … for a “special relationship” with the broker defendants … . “Although the parties’ relationship lasted a considerable period of time and defendant [broker] assured plaintiff that his insurance needs were being met, these circumstances are not so exceptional as to support imposition of a fiduciary duty upon defendant”… . A longstanding relationship alone is insufficient to establish a special relationship between plaintiff and the broker defendants. Dae Assoc., LLC v AXA Art Ins. Corp., 2018 NY Slip Op 01026, First Dept 2-13-18

INSURANCE LAW (ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))/ARTWORK, STOLEN (INSURANCE LAW, STOLEN ARTWORK, ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))/BROKERS (INSURANCE LAW, ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))/FIDUCIARY DUTY (INSURANCE LAW, BROKERS, ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))/TITLE (INSURANCE LAW, STOLEN ARTWORK, ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, BROKERS, ALL RISK ARTWORK INSURANCE DID NOT COVER DEFECTIVE TITLE, ALLEGATIONS DID NOT DEMONSTRATE A FIDUCIARY RELATIONSHIP BETWEEN INSURED AND BROKERS (FIRST DEPT))

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POLICEMAN AND FIREFIGHTER WERE INJURED BY RISKS INHERENT IN THEIR JOBS AND THEREFORE WERE NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge concurrence/dissent, determined that the injuries suffered by a policemen (Kelly) , who was injured preventing a rafter from falling on another officer attempting to rescue residents of a house crushed by a tree during Hurricane Sandy, and a firefighter (Sica), who was injured by odorless toxic gases while performing cardiopulmonary resuscitation on two unconscious persons, did not suffer accidental injury within the meaning of the Retirement and Social Security Law. Therefore, neither petitioner was entitled to accidental disability retirement benefits:

… [T]here is substantial evidence in the record to support the determination that Kelly’s actions in assisting the injured residents of the house during life-threatening conditions fell within his job duties, and that his injuries did not result from a sudden, unexpected event that was not a risk inherent in his duties as a police officer … . …

… [E]xposure to toxic chemicals was a risk for which Sica had been trained, that he had responded to a gas leak in the past, and that his job duties specifically required “working with exposure to . . . fumes, explosives, toxic materials, chemicals and corrosives,” the particular risk that caused Sica’s injury. Inasmuch as it is not unexpected that a firefighter whose job duties required him to respond to emergency medical calls would be exposed to toxic fumes in responding to a call for difficulty breathing, … Sica’s injuries were the result of a risk inherent in his ordinary duties as a firefighter … . Matter of Kelly v DiNapoli, 2018 NY Slip Op 01016, CtApp 2-13-18

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICEMAN AND FIREFIGHTER WERE INJURED BY RISKS INHERENT IN THEIR JOBS AND THEREFORE WERE NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (CT APP))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICEMAN AND FIREFIGHTER WERE INJURED BY RISKS INHERENT IN THEIR JOBS AND THEREFORE WERE NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (CT APP))/POLICE OFFICERS  (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICEMAN AND FIREFIGHTER WERE INJURED BY RISKS INHERENT IN THEIR JOBS AND THEREFORE WERE NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (CT APP))/FIREFIGHTERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICEMAN AND FIREFIGHTER WERE INJURED BY RISKS INHERENT IN THEIR JOBS AND THEREFORE WERE NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (CT APP))

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