Di Benedetto v. Regan

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 Comptroller which denied petitioner’s application for accidental disability retirement benefits. Petitioner was a police officer who worked at an airport. His duties included responding to calls made for police assistance. On the day in issue, he was directed to answer a report of smoke coming out of a suitcase at one of the airport’s terminals. Upon arrival, petitioner saw the smoke coming from the suitcase at a distance of approximately three to six feet. The suitcase was already open and after moving some clothing, petitioner found broken test-tube vials leaking liquid. He backed away, called for assistance and evacuated the terminal. Petitioner admitted that prior to this incident, he was involved in other chemical spills as part of his duties and that in this case he failed to use available breathing apparatus. Given these facts, there is substantial evidence to support the Comptroller’s conclusion that at the time of the incident petitioner was performing his normal and expected duties and that his injuries were the result of risks inherent in the performance of those duties (see, Matter of Beachy v Regan, 119 AD2d 967, lv denied 68 NY2d 604; see also, Matter of Heuther v Regan, 155 AD2d 860, lv denied 75 NY2d 705). Accordingly, the determination denying petitioner’s application for accidental disability retirement benefits must be confirmed. Petitioner’s remaining arguments have been considered and found unpersuasive. Weiss, P. J., Mikoll, Yesawich Jr., Crew III and White, JJ., 947 concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.