Panek v. Regan

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller which denied petitioner’s application for accidental disability retirement. Petitioner, a State trooper, injured his back on two separate occasions, once while changing a tire on a troop car and once while assisting in removing an accident victim from an automobile. He contended that the sharp pain he experienced during each incident was produced by a slip and fall. However, on cross-examination, he admitted signing a written statement relating facts of the second episode which were contrary to his testimony at the hearing. The Comptroller determined that petitioner had not sustained an accident within the meaning of section 363 of the Retirement and Social Security Law. The evidence in the record created factual questions for the Comptroller to resolve; whether petitioner’s injuries were inherent risks in the normal performance of his duties, and whether the credible evidence supported a finding of accident. Since substantial evidence supports the determination, it will not be disturbed (Matter of Croshier v Levitt, 5 NY2d 259; Matter of Merkle v Levitt, 69 AD2d 973). Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.