Petitioner Patricia Brenes brings this proceeding under Article 78 of the C.P.L.R. to annul the decision of respondent The Board of Trustees of the Police Pension Fund (the "PPF"), which denied her a line-of-duty Accident Disability Retirement ("ADR") allowance and granted her [*2]Ordinary Disability Retirement ("ODR"). The other respondents are Raymond Kelly, as the police commissioner and as chairman of the PPF; the New York City Police Department (the "NYPD"); and the City of New York (the "City"). In addition, petitioner seeks an order compelling respondents' production of certain records; however, that branch of the petition is moot based on the documents annexed to respondents' papers. For the reasons stated below, the petition is denied and the proceeding is dismissed.

Petitioner joined the NYPD on October 15, 1990, and served continuously until her retirement on October 30, 2010. On November 8, 2007, petitioner, while assigned to the NYPD's peddler unit, was unloading confiscated property from a truck to the NYPD's property clerk in Queens. As set forth in an incident report completed in November 2007, while lifting a box of property, petitioner "stepped back, on to [sic] an object," which caused her to fall. Petitioner twisted her right knee and was admitted to the emergency room at St. Luke's Roosevelt Hospital. Emergency room staff diagnosed her with a sprained knee; provided her with a knee immobilizer and crutches; and prescribed vicodin. On November 26, 2007, petitioner underwent an MRI of her right knee. It revealed, inter alia, a ruptured anterior cruciate ligament ("ACL"), denudation of condylar articular cartilage with osetochondral injuries, and meniscus tears. After undergoing physical therapy for several weeks, Laith M. Jazrawi, M.D., petitioner's physician, scheduled her for ACL reconstruction with tibialis anterior allograft. The surgery was performed on January 11, 2008, and although there were no complications, petitioner continued to have pain in her right knee, which restricted her to desk duty. After a February 29, 2009 visit with Dr. Jazrawi, Dr. Jazrawi felt that petitioner's right leg was permanently disabled.

On or about December 9, 2009, petitioner applied for ADR On the application, petitioner detailed her injuries and set forth that the injuries occurred on November 8, 2007, after she stepped "back on to [sic] an object" and fell. On July 9, 2010, the Medical Board reviewed petitioner's application and medical records, conducted an examination of her right knee, and recommended approval of her application for ADR, setting forth that the "residual instability of [petitioner's] right knee" precluded her from performing her duties as a police officer. Her application then proceeded to the PPF.

On or about August 25, 2010, petitioner submitted a sworn statement to the PPF, setting forth that she "wish[ed] to clarify the fact that the object' on which [she] tripped on 11/08/2007 was a shovel." On September 8, 2010, the PPF considered petitioner's application. During the hearing, Christopher McGrath, Esq., a consultant to the Police Benevolent Association and petitioner's advocate at the hearing, provided the PPF with information about the peddler unit. Mr. McGrath set forth that after arresting sellers of counterfeit items, officers in the peddler unit voucher and box the confiscated items and then load the boxes into a truck. Mr. McGrath further asserted that shovels are typically kept in the same truck. After hearing from Mr. McGrath, the PPF adjourned the final determination to October 13, 2010. On October 13, 2010, Mr. McGrath provided another statement. He set forth that the PPF should credit petitioner's statement that the object that caused her to fall was a shovel; that the only explanation for the shovel on the floor of [*3]the truck was someone else's negligence; and that, accordingly, there was no reason for petitioner to expect or foresee that the shovel would be left in a "dangerous location." On October 13, 2010, the twelve-member PPF split six to six on whether to award petitioner ADR. In the event of a tie, ADR is deemed denied. See Administrative Code of City of New York § 13-216(b). Although the members of the PPF that voted against ADR did not set forth the reasons for their decision, under the case law, ADR is only available for an injury caused by a "sudden, fortuitous mischance, [which is] unexpected, [and] out of the ordinary." In re Lichtenstein v. Bd of Trs., 57 NY2d 1010, 1012 (1982) (internal quotations and citations omitted). Therefore, by not approving petitioner's application for ADR, six members of the PPF implicitly found that petitioner failed to prove that her injury was caused by an unexpected or out of the ordinary event.

Petitioner argues that she is entitled to ADR because the event that caused her undisputed, disabling knee injury was an "accident." Petitioner argues that falling on an object is not an ordinary risk of unloading property out of truck, but an unexpected event. Petitioner further argues that whether the "object" was a shovel or not, its presence in the truck is akin to the presence of water or a piece of paper on the floor, and that slips caused by such have been deemed accidental. In opposition, respondents assert that petitioner has failed to meet her burden of showing that her injury was the result of an accident sustained in the performance of her duties. Respondents maintain that the PPF's determination that petitioner's injury was not caused by an accident was neither arbitrary nor capricious. They argue that petitioner failed to show that falling on an object while unloading property is an unexpected event. In fact, respondents argue, falling on an object while unloading boxes from a truck is a risk of the job, because the truck likely contained numerous objects. Respondents assert that there is no evidence that the object, shovel or otherwise, was negligently placed in the truck and, therefore, petitioner's fall would not entitle her to ADR.

In an article 78 proceeding challenging a denial of disability payments, the PPF's determination will be sustained unless it is "arbitrary, capricious, an abuse of discretion or contrary to law." In re Jefferson v. Kelly, 51 AD3d 536, 537 (1st Dep't 2008). The court cannot "weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder." In re Porter v. New York City Hous. Auth., 42 AD3d 314 (1st Dep't 2007) (citations omitted).

ADR benefits are available when an examination and investigation shows that the applicant is physically or mentally incapacitated from the performance of duty as a natural and proximate result of an "accidental injury" received in the line of duty, and that such disability was not the result of willful negligence on the part of the applicant. See Administrative Code of City of New York § 13-252. A denial of ADR due to a tie vote cannot be set aside "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." In re Meyer v. Bd. of Trs., 90 NY2d 139, 145 (1997) (internal quotations and citations omitted). As set forth, supra, an injury caused by a "sudden, fortuitous mischance, [which is] unexpected, [and] out of the ordinary" is considered accidental. [*4]In re Lichtenstein, 57 NY2d at1012 (1982) (internal quotations and citations omitted). On the other hand, an injury caused by a trip where tripping is a foreseeable risk of the work being performed does not entitle the applicant to ADR. See e.g., In re Sciabarassi v. Safir, 298 AD2d 329 (1st Dep't 2002) (tripping on a roof depression not unexpected for a police officer whose duties included inspecting radio towers on roofs); In re Russell v. Bd. of Trs., 288 AD2d 19, 20 (1st Dep't 2001) (getting a desk chair caught on a wire running across the floor not an accident); In re Ortiz v. New York City Employees' Ret. Sys., 173 AD2d 237, 238 (1st Dep't 1991) (tripping on an elevator gate not unexpected or sudden for an elevator mechanic); In re Magrino v. DiNapoli, 64 AD3d 868, 869 (3rd Dep't 2009) (tripping on a tool on the floor of a garage not unexcepted for an equipment maintenance manager); In re Quinn v. New York State Comptroller, 55 AD3d 1206 (3rd Dep't 2006) (nearly colliding with other court officers while running down courthouse steps in an emergency not unexpected).

It was neither irrational nor an error of law for the PPF to deny ADR on the grounds that petitioner's fall was not an accident. Petitioner was unloading merchandise from a truck that, according to the record, contains boxes and other objects, like shovels. Inherent in that work, then, is the stepping over or around objects. The risk of tripping while performing this work is foreseeable; therefore, the fall cannot be considered sudden, unexpected, and out of ordinary, and it cannot be said that petitioner is entitled to ADR as a matter of law. See In re Mejia v. Kerik, 301 AD2d 385 (1st Dep't 2003). Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: June, 2011

______________________________

JOAN B. LOBIS, J.S.C.