The opinion
Hendrick v Sewell
2024 NY Slip Op 30762(U)
March 11, 2024
Supreme Court, New York County
Docket Number: Index No. 152569/2022
Judge: Arlene P. Bluth
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 152569/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 152569/2022
TYLER HENDRICK,
MOTION DATE 03/04/20241
Petitioner,
MOTION SEQ. NO. 001
-v-
KEECHANT SEWELL, THE BOARD OF TRUSTEES OF
THE POLICE PENSION FUND, ARTICLE II, NEW YORK DECISION + ORDER ON
CITY POLICE DEPARTMENT, THE CITY OF NEW YORK MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 3, 4, 5, 6, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37
were read on this motion to/for ARTICLE 78 .
The petition to annul respondents’ determination that petitioner is not entitled to Accident
Disability Retirement (“ADR”) is denied.
Background
Petitioner began working for the NYPD in 2007. He claims that on February 29, 2020
while working as a police officer, he suffered a serious wrist injury after responding to a 911
call. He insists that he slipped while stepping into his police SUV. Petitioner stepped up to open
the passenger side door of the SUV and then stepped down with his right foot (apparently, a
person getting into this car has to step up to open the door and then step back down, only to step
back up to finally get into the car). Petitioner alleges that when he stepped down, he landed on
bagged ice that was spilled in the roadway and was in between his vehicle and the sidewalk,
1
The Court recognizes that this proceeding has been pending for a long time before different judges. Although this
proceeding was only assigned to this part on March 4, 2024, the Court apologizes, on behalf of the court system, for
the lengthy delay in the resolution of the instant petition.
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which caused him to reach for door handle of the car and injure his wrist. He contends that the
injury to his wrist required surgery, which he underwent in July 2020.
In January 2021, he applied for ADR. The Medical Board, in a decision dated July 9,
2021, approved his request for ADR (NYSCEF Doc. No. 11). The matter then went before the
Board of Trustees of the Police Pension Fund (the “Board of Trustees”) in November 2021,
which tabled the matter (NYSCEF Doc. No. 12). At an executive session in December 2021, the
Board of Trustees again tabled the matter after discussing whether or not the incident was
unexpected (NYSCEF Doc. No. 13). At the next session on January 12, 2022, the Board of
Trustees finally voted and the result was a 6-6 tie, meaning that petitioner received only Ordinary
Disability Retirement (“ODR”) (NYSCEF Doc. No. 14).
A member of the voting bloc who voted for ODR, noted that “we remain unconvinced
that this was not an open and obvious condition and that this was sudden given that they got out
of the vehicle and it was pretty obvious” (id. at 16 of 17).
Petitioner admits that is unknown whether or not the ice was there when he responded to
the incident; petitioner was directed to go to a Taco Bell to address a call about a disruptive
individual. He claims that a police officer need not be aware of every possible nuisance or
defective condition while responding to an emergency.
In opposition, respondents contend that the issue here is whether the injury was
“accidental.” They acknowledge that the Medical Board granted petitioner ADR but claims that
the Board of Trustees rationally found that the disabling injury was not the result of an
unexpected event. Respondents emphasize that this was an open and obvious condition that
petitioner failed to observe.
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Discussion
In an article 78 proceeding, “the issue is whether the action taken had a rational basis and
was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d
587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious
when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination
has a rational basis, it will be sustained, even if a different result would not be unreasonable”
(id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to
the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale
& Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]).
“Applying for ADR involves a two step process. Initially, the pension fund’s Medical
Board conducts a physical examination, interviews the applicant, and reviews the submitted
evidence, before submitting a recommendation to the Board of Trustees. In the second step, the
Board of Trustees votes to either grant or deny ADR benefits” (Stavropoulos v Bratton, 148
AD3d 449, 450, 50 NYS3d 2 [1st Dept 2017]).
“Not every line of duty injury will result in an award of ADR. When the denial of ADR
benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is
required to uphold the denial unless it can be determined as a matter of law on the record that the
disability was the natural and proximate result of a service-related accident” (Pastalove v Kelly,
120 AD3d 419, 420, 991 NYS2d 39 [1st Dept 2014] [internal quotations and citations omitted]).
As the parties make clear, this is not a situation in which there is a dispute about the
cause of petitioner’s disabling injury. Rather, the primary issue here is where the incident in
question was an accident for purposes of an ADR application. “In the context of ADR benefits,
the Court of Appeals has defined an accident as a sudden, fortuitous mischance, unexpected, out
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of the ordinary, and injurious in impact, while an injury which occurs without an unexpected
event as the result of activity undertaken in the performance of ordinary employment duties,
considered in view of the particular employment in question, is not an accidental injury” (id.).
The Court denies the petition as the Board of Trustees rationally concluded that
petitioner’s injury was not caused by a sudden or unexpected event. Not every on-the-job injury
qualifies for ADR. The Appellate Division, First Department has found that a police officer who
injured his knee while stepping out of his patrol car was not an accident for purposes of granting
ADR (Gray v Kerik, 15 AD3d 275, 791 NYS2d 9 [1st Dept 2005]). And, of course, responding
to a 911 call is a normal risk inherent in police work (Pastalove, 120 AD3d at 421).
And, here, the fact is that the Board of Trustees concluded that the condition that caused
petitioner’s incident was open and obvious such that petitioner had ample opportunity to see and
avoid the ice. The Court observes that the Third Department2 has found that an officer who
slipped and fell on ice was not entitled to receive ADR, even though he claimed not to see it
before he fell (Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283, 924 NYS2d 221 [3d Dept
2011]). It also found that a firefighter who slipped on ice that formed while he was fighting a fire
did not constitute an accident for ADR purposes (Matter of Campbell v DiNapoli, 56 AD3d 940,
941, 867 NYS2d 650 [3d Dept 2008]). The key factor for this Court is that the precipitating
cause of the incident was not sudden or unexpected; that petitioner contends he did not notice the
ice laying on the ground does not make it an accident for purposes of ADR.
2
The Court recognizes that the procedural posture of that case in the Third Department is a bit different as it
involved a question of substantial evidence after a hearing, whereas no such hearing was held in connection with this
type of ADR application.
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Summary
This Court emphasizes that it cannot disturb the Board of Trustees’ decision simply
because it disagrees with the Board of Trustees. Rather, in order to be irrational, the record must
show as a matter of law that this was a service-related accident and here, the record does not
show that. While it is completely understandable that petitioner disagrees with the Board of
Trustee’s determination via their 6-6 tie vote, the Court sees no basis to disturb that conclusion
on this record.
Accordingly, it is hereby
ADJUDGED that the petition is denied and this proceeding is dismissed without costs or
disbursements.
3/11/2024 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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