Matter of Lang v Kelly |
2012 NY Slip Op 08788 [101 AD3d 561] |
December 20, 2012 |
Appellate Division, First Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
In the Matter of Jean Lang, Appellant, v Raymond Kelly, as the Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents. |
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Michael A. Cardozo, Corporation Counsel, New York (Keith M. Snow of counsel), for
respondents.
Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered April 6, 2012, denying the petition to annul respondents' denial, by virtue of a tie vote of respondent Board of Trustees, of petitioner's application for accidental disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to demonstrate as a matter of law that her injury was the result of an accident, i.e., a sudden, unexpected, out of the ordinary event, rather than a misstep during the routine performance of her job (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010 [1982]; Matter of Doyle v Kelly, 8 AD3d 125 [1st Dept 2004]). She was injured when she tripped over computer wires extending across the threshold of the doorway between the precinct's female supervisors' locker room and the bathroom. In statements made contemporaneously with the accident, she indicated that the wires were "exposed." Two years later, she submitted a statement indicating that the wires had initially been secured to the floor with duct tape and that the tape was removed on the day she fell. Respondents were entitled to credit petitioner's contemporaneous account and reject her more recent statement that the condition of the wires changed on the day of the accident (see [*2]Matter of Bisiani v Kelly, 39 AD3d 261 [1st Dept 2007]). Respondents reasonably inferred that, since the wires had been in place for several months before petitioner's fall, she must have been aware of them and routinely stepped over them. Concur—Andrias, J.P., Saxe, Moskowitz, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2012 NY Slip Op 30907(U).]