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THE RULING THAT PETITIONER-CORRECTION-OFFICER’S DISABLING CONDITION WAS NOT CAUSED BY AN ALTERCATION WITH AN INMATE WAS SUPPORTED BY “SUBSTANTIAL EVIDENCE;” “SUBSTANTIAL EVIDENCE” IN THIS CONTEXT IS DEFINED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that substantial evidence supported the ruling by the Board of Trustees of the New York City Employees’ Retirement System (hereinafter the Board of Trustees) that petitioner-correction-officer’s disabling condition was not related to an altercation with an inmate. Therefore petitioner was not entitled to disability benefits. The dissent would have ordered a new hearing because of the possibility untrue information in the record (i.e., that petitioner altered an MRI report) affected the ruling:

Ordinarily, the decision of the board of trustees as to the cause of an officer’s disability will not be disturbed unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious” … . Substantial evidence has been construed in disability cases, as requiring some credible evidence … . Credible evidence has been described as evidence that proceeds from a credible source, which reasonably tends to support the proposition for which it is offered … . * * *

Contrary to the petitioner’s contention and the position of our dissenting colleague, the record does not demonstrate that the Board of Trustees was misled by reports prepared by the Medical Board that contained a statement that the petitioner altered an MRI report or by statements that he returned to “full duty” after the incident and continued to work for “several years.” With regard to the MRI report, … the Chair of the Medical Board informed the Board of Trustees that the discrepancy between the MRI reports submitted on two different days was resolved by the inspector general’s office and that the addendum was written by a doctor. With regard to the issue of whether the petitioner returned to full duty and continued to work for several years, when he worked for approximately one year and seven months after the incident, the petitioner had multiple opportunities to testify and to present evidence of these facts, which the Board of Trustees considered. Matter of Singleton v New York City Employees’ Retirement Sys., 2022 NY Slip Op 05089, Second Dept 8-31-22

Practice Point: In the context of a Retirement and Social Security Law disability-benefits hearing to determine whether a correction officer’s disabling condition was caused by an altercation with an inmate, the denial of disability benefits must be supported by “substantial evidence” which requires “some credible evidence,” meaning evidence from a “credible source.” Here the denial of benefits was upheld.

 

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PETITIONER, A COURT OFFICER, SLIPPED AND FELL ON A WET FLOOR IN THE COURTHOUSE; THE FALL WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, determined petitioner court officer suffered a compensable accident when slipped on a wet floor in the courthouse and may therefore be entitled to accidental disability retirement benefits:

Petitioner testified that she was on duty and returning to the security office at the end of her shift when she “slipped on the wet floor” in the courthouse where she was assigned. Having fallen to the ground on her back, she “felt the water on the floor” and observed that the whole area appeared to be wet as though recently mopped. She stated that she did not observe that the floor — which was light in color — was wet before her fall and, further, there had been no signs advising of the hazard. She had never seen anyone mopping in the courthouse and was wearing nonslip shoes as part of her uniform at the time of the fall.

Like the incidents deemed accidental in Matter of Knight v McGuire (62 NY2d 563 [1984] [accident where the petitioner slipped on wet pavement getting into a patrol car]) and Matter of Gasparino v Bratton (92 NY2d 836, 838-839 [1998] [accident where the petitioner slipped in water on a bathroom floor]), the precipitating event here was not a risk of the work performed by petitioner. Her description of the incident also demonstrates that her fall was sudden and unexpected … . Matter of Como v New York State Comptroller, 2022 NY Slip Op 01223, Third Dept 2-24-22

 

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PETITIONER POLICE OFFICER’S SITTING IN A DESK CHAIR (WHICH WAS SUBSEQUENTLY FOUND TO BE BROKEN), LEANING BACK, FALLING BACKWARD AND INJURING HIS HEAD CONSTITUTED AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, over a dissent, annulled the determination that petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law. Petitioner alleged he sat in a desk chair, leaned back and fell over striking his head. There was evidence the chair was broken:

Petitioner’s burden was to demonstrate that his disability arose out of an accident which, for purposes of the Retirement and Social Security Law, is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” … . * * *

In our view, the incident as described constitutes an accident. Contrary to the findings of the Hearing Officer, whether the chair was broken prior to or during the fall is of no moment, as either way petitioner was unaware of any defect. In either situation, the collapse of a chair back would be a sudden, unexpected outcome for anyone who simply sits and leans back. Matter of Crone v DiNapoli, 2022 NY Slip Op 00481, Third Dept 1-27-22

 

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THE WIND BLOWING A DOOR SHUT ON PETITIONER POLICE OFFICER’S HAND DID NOT CONSTITUTE AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, over a two-justice dissent, determined petitioner police officer’s injury caused by wind slamming a door on her hand was not an “accident” entitling her to disability benefits:

… “[W]hen determining whether a precipitating event was unexpected, [the Comptroller] and courts may … consider whether the injured person had direct knowledge of the hazard prior to the incident or whether the hazard could have been reasonably anticipated so long as such a factual finding is based upon substantial evidence in the record” … . * * *

… [P]etitioner testified that, as she was walking from the bus to the booth to write her report, she observed that it was windy. Indeed, petitioner does not dispute that, on the day of the incident, it was cold and windy and that she was aware of the weather conditions. According to petitioner, the door to the booth weighed between 80 and 100 pounds and she was aware that the door would close on its own, as it did not have a closure arm attached to slow its closure. Petitioner further testified that, when she went to open the door to the booth, she felt resistance due to the wind blowing against it and she only opened the door enough for her to “squeeze” herself in. As petitioner entered the doorway, she felt a gust of wind and, concerned that the door was going to hit her as it closed, she put her right hand out behind her for protection. The wind blew the door shut behind her, slamming her right hand in the doorjamb. … [S]ubstantial evidence supports the Comptroller’s determination that petitioner could have reasonably anticipated that the wind would blow the door closed on her and, therefore, the incident did not constitute an accident within the meaning of the Retirement and Social Security Law … . Matter of Rizzo v DiNapoli, 2022 NY Slip Op 00095, Third Dept 1-6-22

 

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THE NEW YORK STATE AND LOCAL RETIRMENT SYSTEM DID NOT REBUT THE “WORLD TRADE CENTER PRESUMPTION” THAT PETITIONER’S DEPRESSION WAS AGGRAVATED BY HIS EXPERIENCES ON 9-11; PETITIONER POLICE OFFICER WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, reversing the Comptroller, determined that the respondent New York State and Local Retirement System did not rebut the “World Trade Center presumption” that petitioner’s depression was aggravated by his experiences on 9-11:

Recognizing that there is no objective laboratory test to diagnose a mental health disorder like depression, if Fayer [respondent’s expert] was going to assert as fact that there are definitive biological reasons for petitioner’s qualifying condition — and that his depression would have reached the point of disability no matter the circumstances — it was incumbent upon Fayer, or the Retirement System generally, to provide some support for that far-reaching conclusion … . “Although the [World Trade Center] presumption is not a per se rule mandating enhanced accidental disability retirement benefits for first responders in all cases” … . in our view, accepting Fayer’s generalized conclusions, on their own, as adequate to rebut the statutory presumption afforded to petitioner — that his depression was in fact aggravated by his experiences on 9/11 — renders the existence of the presumption illusory. We therefore reverse the Comptroller’s finding that the Retirement System rebutted the World Trade Center presumption … . As a result, petitioner’s application for World Trade Center accidental disability retirement benefits must be granted (see Retirement and Social Security Law § 363 [g] [1] [a]). Matter of Fragola v DiNapoli, 2021 NY Slip Op 07596, Third Dept 12-30-21

 

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PETITIONER-POLICE-OFFICER’S SLIP AND FALL ON BLACK ICE WAS A COMPENSABLE ACCIDENT UNDER THE RETIREMENT AND SOCIAL SECURITY LAW BECAUSE THE METEOROLOGICAL CONDITIONS WERE SUCH THAT THE PRESENCE OF BLACK ICE COULD NOT HAVE BEEN ANTICIPATED (THIRD DEPT).

The Third Department, reversing (modifying) the hearing officer’s ruling, determined the petitioner-police-officer’s slip and fall on black ice was a compensable “accident” within the meaning of the Retirement and Social Security Law:

Petitioner testified that, while patrolling his assigned area on the evening in question, he observed a group of youths congregating in a local parking lot. Consistent with his patrol duties, petitioner pulled into what he described as the poorly illuminated parking lot with the intention of instructing the group to disperse. As petitioner exited his vehicle, he slipped on what he later described as black ice and sustained injuries. Petitioner testified that, although it was cold and blustery at the time of his fall, it was not raining or snowing, and he did not recall any precipitation occurring in the days prior to the incident. As petitioner was focused on “[o]bserving the scene,” he also did not recall looking down at the surface of the parking lot prior to exiting his patrol vehicle. * * *

Absent some indication of meteorological conditions that would be amenable to the presence or formation of black ice, respondent’s determination — that petitioner could have reasonably anticipated the slippery condition that he encountered at the time of his fall — is not supported by substantial evidence … . Matter of Castellano v DiNapoli, 2021 NY Slip Op 05148, Third Dept 9-30-21

 

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PETITIONER, A POLICE OFFICER, WAS ASKED BY HER SUPERVISOR TO PICK UP A LARGE BREAKFAST ORDER FOR THE PRECINCT; PETITIONER SLIPPED AND FELL ON ICE IN THE PARKING LOT WHEN RETURNING WITH THE ORDER; PETITIONER WAS “IN SERVICE” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW WHEN SHE FELL (THIRD DEPT).

The Third Department determined the petitioner, a police officer, was in service when she slipped on ice and her application for accidental disability benefits should not have been denied on that ground. The matter was sent back for a determination when the fall was an “accident” within the meaning of the Retirement and Social Security Law:

Respondent’s determination that petitioner was not in service because she was performing “a personal activity” at the time of her 2011 injury is not supported by substantial evidence. Petitioner testified that, on the day of the incident, her supervisor asked if the desk duty officers were going to get breakfast. According to petitioner, the supervisor then requested that someone contact a patrol officer that was on the road and have him or her pick up breakfast for the precinct. … A fellow officer that was in the precinct at the time volunteered to go and asked petitioner to accompany him to help carry the large order. According to petitioner, her supervisor then gave her permission to go and he paid for the breakfast order. Upon her return to the precinct with the breakfast order, she slipped on ice while walking in the parking lot. In our view, by going out to pick up a breakfast order for the precinct at the behest of her supervisor, petitioner was performing a work duty rather than engaged in a personal activity … . Matter of Arroyo v DiNapoli, 2021 NY Slip Op 03895, Third Dept 6-17-21

 

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NYC POLICE OFFICERS IN THE TIER 3 RETIREMENT SYSTEM ARE ENTITLED TO CREDIT FOR PERIODS OF UNPAID CHILDCARE LEAVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined that retiring police officers are entitled to credit for the unpaid leave for child care. The appeal raised a question of statutory interpretation. The Court of Appeals found that the relevant provision of the NYC Administrative Code was not preempted by the Retirement and Social Security Law (RSSL):

The Appellate Division order should be reversed and Supreme Court’s judgment declaring that defendants violated the second subdivision (h) of Administrative Code of the City of New York § 13-218 by excluding police officers in tier 3 of the state retirement system from the retirement benefits conferred by that subdivision reinstated. Applying longstanding, basic rules of statutory interpretation, we conclude that the relevant part of Administrative Code § 13-218 renders officers of the New York City Police Department (NYPD) who are members of the tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law (RSSL). Lynch v City of New York, 2020 NY Slip Op 05841, Ct App 10-20-20

 

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INCREASES IN PAY TO PORT AUTHORITY EXECUTIVE EMPLOYEES, AIMED AT RETAINING THOSE EMPLOYEES IN THE WAKE OF THE 9-11 ATTACKS, SHOULD NOT BE TREATED AS SALARY IN THE CALCULATION OF THOSE EMPLOYEES’ RETIREMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined certain increases in pay to executive employees of the Port Authority, aimed at retaining those employees in the wake of the 9-11 attacks, should not be treated as salary in the calculation of those employees’ retirement benefits. ” … Retirement and Social Security Law § 431 provides that “[i]n any retirement or pension plan to which the state or municipality thereof contributes, the salary base for the computation of retirement benefits shall in no event include . . . any additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3] [emphasis added]):”

… [W]e must … ask whether there is substantial evidence in the record to support the Comptroller’s determination that the Port Authority’s compensation adjustment program constituted “additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3]). Under this standard, where substantial evidence exists to support the administrative agency’s determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion … . In order to determine whether the purpose of the compensation was “to circumvent the provisions of Retirement and Social Security Law § 431,” courts ” must look to the substance of the transaction and not to what the parties may label it’ ” … .

Here, the record contains substantial evidence supporting the Comptroller’s determination that the Port Authority provided the compensation adjustments to artificially increase the executive employees’ final average salaries so that, upon retirement, they would receive pension increases roughly equivalent to those they would have received under the retirement incentive program. Indeed, the letter agreements signed by petitioner employees directly referred to a program “designed to provide a limited number of staff members with a parity’ benefit” to make their “pension calculation[s] . . . roughly equivalent to the calculation[s] if [they] had been eligible to retire with the incentive.” Plainly, substantial evidence supports the conclusion that the compensation, by design, was made in anticipation of petitioner employees’ retirement within the meaning of the statute. Matter of Bohlen v DiNapoli, 2020 NY Slip Op 00997, CtApp 2-13-20

 

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PETITIONER, A COUNTY CORRECTION OFFICER, WAS ENTITLED TO DISABILITY RETIREMENT BENEFITS; AN INMATE, WHO WAS UNSTEADY ON HER FEET AND MAY HAVE BEEN UNDER THE INFLUENCE OF DRUGS, FELL HEAD FIRST FROM A TRANSPORT VAN ONTO PETITIONER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurring opinion and a three-judge dissenting opinion, reversing the Appellate Division, determined that petitioner, a Nassau County correction officer, was entitled to performance-of-duty disability retirement benefits. An inmate, apparently under the influence of drugs, was unsteady on her feet and had to be helped from the transport van to the court, and then back to the van. Upon arrival at the jail, when the transport doors were opened, the inmate fell head first out of the van on top of petitioner, who suffered rotator cuff and cervical spine injuries. The applicable statute refers to injury caused by “any act of any inmate.” The majority concluded the act need not be intentional:

Our task … is to give effect to the text [of the statute, Retirement and Social Security Law § 607-c (a) ]. … [E]ven if we were to consider the legislative history, it is inconclusive. While we agree with the dissent insofar as there seemed to have been a desire to provide protections to correction officers because they “come into daily contact with certain persons who are dangerous, profoundly anti-social and who pose a serious threat to their health and safety” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 722 at 9), inmates may be “dangerous” and pose a “serious threat” as much through their involuntary acts as by their voluntary acts.

Here, the inmate took one to two steps, lost her balance, and landed on petitioner, injuring her. Petitioner’s injuries were thus sustained by “any act of any inmate,” i.e., the inmate’s fall on petitioner. Matter of Walsh v New York State Comptroller, 2019 NY Slip Op 08518, CtApp 11-25-19

 

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