Petitioner, Peter Cacciatore, brings this CPLR Article 78 proceeding against respondent Jessica S. Tisch, as the Police Commissioner of the City of New York and Chairperson of the Board of Trustees of the Police Pension Fund; and respondent Board of Trustees of the New York City Police Pension Fund. Petitioner asks this court to (1) annul respondents' disapproval of his request for accident disability retirement (ADR) pursuant to Administrative Code of the City of New York § 13-252 and (2) award petitioner ADR as a matter of law, retroactive to the date of his ordinary disability retirement (ODR). Alternatively, petitioner seeks an order remanding this matter to respondents for another review of petitioner's ADR application. (NYSCEF No. 24 at 1.)

The petition is denied, and this proceeding is dismissed.

On January 15, 2009, petitioner, then a New York City Police Department (NYPD) officer, was on duty when he was called to a crime scene. Petitioner arrived to find his colleague and close friend, Sgt. Timothy Smith, lying on the ground with his eye dislodged and multiple stab wounds, including one in his chest. Petitioner held Sgt. Smith's eye in its socket and put pressure on his chest wound while two other officers attempted to subdue the knife-wielding perpetrator. (NYSCEF No. 1 at 3.) Sgt. Smith lost his eye and suffered paralysis as a result of the stabbing. (Id.) In the years following the event, petitioner suffered from post-traumatic stress disorder (PTSD) and major depressive disorder. On October 19, 2022, petitioner applied for ADR. (Id. at 6.)

Respondents referred the case to their Medical Board, which found that petitioner is disabled by PTSD and major depressive disorder as a result of the January 2009 tragedy. (Id. at 8-9.) On August 14, 2024, the Board of Trustees, on a six-to-six tie vote, found that Petitioner's injury was not "accidental," as required by New York City Administrative Code § 13-252 for ADR. A Board of Trustees tie vote is resolved against the applicant. (Matter of Lang v Kelly, 21 NY3d 972, 973 [2013].) The Board of Trustees denied petitioner's request for ADR, and awarded him ODR instead, which comes with a far smaller pension. (NYSCEF No. 1 at 19.)

Administrative Code § 13-252 directs the Board of Trustees to award ADR to pension-fund members in specified circumstances.^[FN1] In particular, § 13-252 provides that ADR should be awarded when members are physically or mentally incapacitated in performing their job duties as the proximate result of an accidental on-the-job injury, as long as that injury is not the result of members' own negligence.

If the Board denies ADR and a court later determines that the applicant is entitled to ADR as a matter of law, that court may set aside the Board's denial. (See Matter of McCambridge v McGuire, 62 NY2d 563, 568 [1984].)

For ADR purposes, "accidental" means "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." (Lichtenstein v Bd. of Trustees, 57 NY2d 1010, 1012 [1982].) Harm is "accidental" only when it results from events not within the risk of the work performed. (See McCambridge, 62 NY2d at 568; Matter of Kelly v DiNapoli, 30 NY3d 674, 690 [2018].) An accident usually results from a condition "the existence of which is unrelated to one's employment." (Matter of Malenda v Regan, 134 AD2d 808, 808 [3d Dept 1987].)

In Matter of Berbenich v Regan, for example, an officer accidentally shot and killed a priest who unexpectedly appeared on the scene of a church burglary. (See 81 AD3d 732, 732 [3d Dept 1981], affd on opn below 54 NY2d 792 [1981].) The Appellate Division confirmed the state comptroller's determination that the incident arose from the officer's "expected and foreseeable duties," and was thus not accidental. (Id.) In Matter of Cummings v Regan, an officer suffering from a posttraumatic disorder filed for disability after witnessing an arrestee point a [*2]gun at another officer. (See 107 AD2d 968, 969 [3d Dept 1985].) The Appellate Division upheld the Board's denial of ADR because the event was "a risk inherent in the task performed." (Id.)

Here, as in Matter of Berbenich, petitioner's harm resulted from extreme and surprising circumstances related to his job as a police officer—responding to a crime scene and administering aid to a fellow officer. Moreover, as in Matter of Cummings, petitioner was personally acquainted with the officer in danger and sought ADR for a posttraumatic disorder that was caused by the incident. In light of these appellate precedents, this court concludes that petitioner's experience was within the risk of his job as an NYPD officer and that his disability was not incurred "accidentally" within the meaning of Administrative Code § 13-252.

Petitioner argues that the term "accidental" in Administrative Code § 13-252 should be interpreted to include risks assumed by the work performed. Petitioner argues that Matter of Berbenich is inapplicable here because, unlike the officer in that proceeding, petitioner here was not responsible for the injuries that took place, and here petitioner knew the victim personally. This court disagrees. First, the Court's analysis in Berbenich did not depend on the fact that the officer was at fault when it concluded that the event was not "accidental." Instead, the Court asked whether the injuries "resulted from petitioner's expected and foreseeable duties." (See 81 AD2d 732, 732 [3d Dept 1981].) Second, the degree of harm that the officer suffered did not contribute to the Court's determination in Berbenich—the comptroller in that case did not dispute that the officer was incapacitated within the meaning of the statute. Thus, even if petitioner here suffered more harm due to his close personal relationship with Sgt. Smith, this difference would not be material.

Petitioner refers to a memorandum submitted by Catherine M. Lamstein, Psy.D, Psychologist, working for the NYPD Psychological Evaluation. Dr. Lamstein concludes that petitioner's harm was out of the ordinary because witnessing another's harm is "not experienced the same when the victims are family, friends, or close coworkers." (NYSEG No. 12 at 2.) Petitioner argues that his close relationship with Sgt. Smith therefore makes the January 2009 incident "accidental." This argument is unpersuasive. The relationship between petitioner and Sgt. Smith likely exacerbated the severity of the harm, but no case law suggests that the severity of harm impacts whether such harm is "accidental." Instead, whether harm is "accidental" depends on the "precipitating event" that caused the injury, not the harm itself. (McCambridge, 62 NY2d at 568.)

Petitioner argues further that the Board of Trustees should have awarded petitioner ADR, because it had previously granted ADR to a police officer who, upon hitting the gas on his patrol car, unexpectedly "launched" another officer into the air and killed him. (NYSCEF No. 24 at 9.) Petitioner argues that there, as in the instant case, the officer "witnessed another officer, whom he was attempting to help, receive mortal injuries." (Id.) This court disagrees. Unlike administering aid to an officer with stab wounds, witnessing an officer get "launched" from a patrol car is out of the ordinary, and not expected given an officer's job duties. The Board was thus not inconsistent in granting ADR to the officer in that case but denying ADR to petitioner.

Petitioner also points to Matter of Carr v Ward, in which the First Department annulled the Board's denial of ADR to an officer who was injured after falling during a required boxing lesson at the police academy. (See 119 AD2d 163, 164 [1st Dept 1986].) Petitioner quotes Justice Sandler's concurring opinion in Carr, in which he argued that the Administrative Code is not sensibly applied when it results in a denial of disability benefits on the basis that accidents must be "unexpected consequences of routine duties." (NYSCEF No. 24 at 10, quoting 119 AD2d at [*3]169 [Sandler, J., concurring].) Petitioner argues that Justice Sandler's language shows that NYPD officers should not be foreclosed from line-of-duty disability "merely because violent occurrences are a potential aspect of an NYPD officer's job." (Id.) This court disagrees.

The Court reasoned in Matter of Carr that the events leading to the officer's harm were not within the risk of the job. In that case, the officer's sparring opponent was incentivized to use "extraordinary effort" and because the gym was "extremely overcrowded." (Id. at 166.) Appellate Division cases since Matter of Carr have continued to apply the "within the risk" standard. (E.g. Matter of Kehoe v City of New York, 186 AD2d 376, 376 [1st Dept 1992].) And cases in this area citing Carr do so without mentioning the concurring opinion or its critique of the "within the risk" standard. (See Matter of McKenna v Hevesi, 26 AD3d 584, 585 [3d Dept 2006]; Matter of Hipple v Ward, 146 AD2d 201, 206 [1st Dept 1989].)

Petitioner then points out that some cases supporting the "within the risk" standard do not apply Administrative Code § 13-252, but instead interpret Retirement and Social Security Law (RSSL) § 363. Petitioner contends that RSSL cases are not apposite here because "they pertain to a different pension system." (NYSCEF No. 24 at 7.) In support of this claim, petitioner relies on the fact that officers in the State and Local Retirement System are entitled to "performance-of-duty disability" pension to which NYPD officers have no access, and that NYPD officers have a "much more varied and dangerous job description." (Id.)

Petitioner's contends is unpersuasive. In McCambridge, in which a police officer sought ADR under the New York City Administrative Code (not the RSSL), the Court held that an accident must result from an "unexpected event" and may not be "a risk of the work performed." (62 NY2d at 568.) Petitioner does not cite any case supporting his contention that the Administrative Code and the RSSL should be interpreted differently. And as respondents here observe, the language of the two provisions is nearly identical. (Compare Administrative Code § 13-252 with RSSL § 363.) Further, ADR cases decided under the Administrative Code often cite ADR cases under the RSSL for guidance on interpreting the term "accidental," and do so without taking into account that those decisions concern a different pension system. (See e.g. McCambridge, 62 NY2d at 568; Whitton v Spinnato, 143 AD2d 274, 276 [2d Dept 1988].)

Accordingly, it is

ORDERED that the petition is denied, and this CPLR article 78 proceeding is dismissed;^[FN2] and it is further

ORDERED that respondents serve a copy of this order with notice of its entry on petitioner and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.