Claim of Chilelli v. DiNapoli

Egan Jr., J. As the applicant, petitioner bore the burden of establishing that her injury was caused by “a sudden and extraordinary event that [was] unrelated to the ordinary risks of [her] employment” (Matter of Bleeker v New York State Comptroller, 84 AD3d 1683, 1683-1684 [2011], lv denied 17 NY3d 709 [2011] [internal quotation marks and citation omitted]; accord Matter of O’Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]), and respondent’s determination in this regard will not be disturbed if it is supported by substantial evidence in the record as a whole (see Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011]; Matter of West v DiNapoli, 79 AD3d 1565, 1565 [2010]). “[I]njuries that arise out of an employee’s own misstep or inattention will not merit an accidental disability determination” (Matter of Piccinini v DiNapoli, 68 AD3d 1212, 1212 [2009] [internal quotation marks and citation omitted]; accord Matter of Magliato v DiNapoli, 78 AD3d 1457, 1458 [2010]), and any inconsistencies between written documents and an applicant’s sworn testimony present a credibility issue for respondent to resolve (see Matter of Dilello v DiNapoli, 83 AD3d 1361, 1362-1363 [2011], lv denied 17 NY3d 717 [2011]; Matter of Confreda v New York State Comptroller, 56 AD3d 938, 940 [2008], lv denied 12 NY3d 708 [2009]). Here, petitioner’s application for retirement benefits, as well as the underlying incident report, indicate that her injury was [1099] caused when she tripped over a curb during the performance of her ordinary duties, i.e., helping school children cross the street. Inasmuch as there is substantial evidence to support respondent’s determination that the incident was not an accident within the meaning of the Retirement and Social Security Law, it will not be disturbed — despite evidence in the record that arguably could support a contrary conclusion (see Matter of O’Keefe v McCall, 287 AD2d 921, 922 [2001]). Peters, J.P, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.