—[*1] Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.

Spain, 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 Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer employed by the Port Authority of New York and New Jersey, was assigned to John F. Kennedy International Airport where he also served as an emergency rescue worker. As part of his work duties, petitioner was required to perform "functionals," which are weekly safety tests to assure that all systems on the emergency fire rescue trucks were operating properly. In January 1999, petitioner drove a rescue truck onto one of the taxiways to perform a functional. As he was alighting from the cab and placing his left foot on the ground, petitioner slipped on black ice and fell, twisting his left leg and ankle and hitting his head and shoulders on the pavement. In May 2007, petitioner submitted an application for accidental disability retirement benefits pursuant to Retirement and Social Security Law § 363 and a Hearing Officer determined that he was eligible for benefits. However, respondent Comptroller reversed and denied benefits, prompting petitioner to commence this CPLR article 78 proceeding. [*2]

"For purposes of accidental disability retirement benefits, the underlying incident must be 'a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties' " (Matter of Welsh v New York State Comptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d 706 [2010], quoting Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000]; accord Matter of Carpiniello v DiNapoli, 88 AD3d 1045, 1046 [2011]). A petitioner seeking benefits bears the burden of proving entitlement, and a determination by the Comptroller will be upheld when supported by substantial evidence (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893 [2011]; Matter of Gregg v DiNapoli, 86 AD3d 850, 850 [2011]).

Here, petitioner established through testimony and documentary evidence that the day of the accident was cold and clear with no precipitation. The record establishes that the taxiway was dry as petitioner and his partner drove to the spot where they would be performing the functional, and petitioner saw no ice as he was exiting from the truck's cab. Petitioner further testified that he had never experienced icy conditions on the taxiway unless it had snowed.

In contrast, the Comptroller rested his determination in part on the assumption by petitioner, as related in his application, that the ice was created by leakage from the truck. However, petitioner testified at the hearing that he did not see any water leaking from the truck and his assumption, first posited eight years following the accident, was based on the fact that there did not seem to be any other explanation for the presence of the ice. Notably, the record is devoid of any evidence of such a leak.

Additionally, the Comptroller's decision relies on the premise that encountering slick or icy surfaces was "inherent" in petitioner's performance of his job during winter. While this Court has held that a fall occasioned by a slippery surface is not an accident when that condition could have been reasonably anticipated (see Matter of O'Neill v DiNapoli, 83 AD3d 1280, 1281 [2011] [the petitioner slipped on ice while stepping over 18-inch snow bank on snow-covered sidewalk]; Matter of Stymiloski v DiNapoli, 64 AD3d 865, 866 [2009] [the petitioner witnessed fire department douse area with water in sub-freezing weather]; Matter of Campbell v DiNapoli, 56 AD3d 940, 941 [2008] [the petitioner slipped and fell on ice that accumulated while he was fighting a fire in sub-freezing temperatures]), "a denial upon such ground must be supported by the record and not rest merely upon speculation" (Matter of Tierney v New York State Comptroller, 90 AD3d 1215, 1215-1216 [2011]). Indeed, we have never countenanced a doctrine, and cannot do so now, that would hold that any slip and fall during the course of work performed outside during winter renders that event foreseeable (see e.g. Matter of Sullivan v Regan, 133 AD2d 993, 993-994 [1987]). As such, we find that the Comptroller's decision is not supported by substantial evidence and the determination must be annulled.

Lahtinen, J.P., Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.