Scibilia v. Regan

Crew III, J. Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s request for accidental disability retirement benefits. Petitioner was a mechanical foreman employed by the [1097] Monroe County Board of Elections. On December 26, 1989, he filed an application for accidental disability retirement benefits for an alleged accident that occurred in May 1979. Respondent disapproved his application on February 12, 1990. Hearings were held on September 11, 1990 and November 28, 1990 pursuant to petitioner’s timely request therefor. The Hearing Officer determined, and respondent agreed, that petitioner’s injury was not a result of an accident as contemplated by Retirement and Social Security Law § 363. Petitioner thereafter commenced this proceeding challenging respondent’s determination. The Hearing Officer found that petitioner directed James Watkins, a voting machine technician and his subordinate, to repair a defective wheel on a voting machine on May 31, 1979. The 650-pound machine had to be elevated in order to make such a repair. After setting a Johnson bar beneath the machine, Watkins used one hand to apply pressure on the bar to elevate the machine while his other hand was used to place a four-inch wooden block underneath it. Petitioner observed that the machine was about to tip over and rushed to prevent such occurrence. Petitioner testified that he injured his lower back when he assisted Watkins in stabilizing and lifting the voting machine. Both Grant Bartlett, who was the assistant foreman and a senior voting machine technician, and Watkins testified that petitioner held up the voting machine in order to keep it from falling until the wooden block could be placed underneath it. In order to be eligible for accidental disability retirement benefits, petitioner’s injury must have emanated from a " 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, 1012, quoting Johnson Corp. v Indemnity Ins. Co., 6 AD2d 97, 100, affd 7 NY2d 222). The Hearing Officer determined that the tipping of the machine constituted an accident, that is, a sudden, unexpected event. He further found, however, that petitioner’s response to that event was a separate, voluntary and unfortuitous event and the resulting injury was therefore not the result of an "accident”. We cannot agree. We view the incident as one continuous event in which petitioner, while responding to the sudden and unexpected tipping of the machine, caught it and brought it to an upright position as the result of which he injured his back, thereby entitling him to accidental disability retirement benefits (cf., Matter of Esposito v Regan, 162 AD2d 870). [1098] Weiss, P. J., Mikoll and Mahoney, JJ., concur.