By: Milan Rada Esq., with John Hewson, Esq.

An incredibly illustrative set of cases was recently decided by New York State’s highest court, the Court of Appeals, regarding the issue of “accident” versus “incident” in the realm of disability pension cases.  For years, you have read how difficult the Retirement System has made the issue of what constitutes an “accident” under its definition.  Very rarely have we seen a case that has made its way through the appeal process all the way to the highest court in the state.  The Court of Appeals was going to be required to weigh in at some point because amongst the different Judicial Departments of New York State, there appears to be some split as to what defines an “accident” under the law.  The Third Department in Albany, which provides precedent over the disability pensions for not only Nassau County Police Officers but also all Police Officers throughout New York State except for NYPD officers, has been notoriously strict and limiting in what defines an “accident.”  However, by comparison, the First Department overseeing New York City police disability claims, has been considerably more liberal when it comes to defining an “accident.”   Thus, what might be an “accident” in the New York City system might only be an “incident” within the State system.  The Court of Appeals attempted to rectify this disparity.


Unfortunately, what the Court of Appeals did was simply confirm what we have been writing about for years.  When it comes to the term “accident” and the Retirement System, its logic is sometimes absurd and completely illogical.  The Court of Appeals, and in particular one dissenting judge, pointed that out brilliantly in its latest decision.  That being said, the lack of clarity provided in this decision only further evidences the fact that the only way to protect oneself in this area is to have a proper understanding of what the Retirement System is hoping to see when it comes to an “accident”, and even that sometimes is not enough.


In the Matters of Kelly v. DiNapoli and Sica v. DiNapoli, the Court of Appeals notes that it was asked whether the petitioners in both cases were entitled to accidental disability retirement benefits by proving they were injured in “accidents” as this term is defined under Section 363 of the Retirement and Social Security Law.  Both applicants, the petitioners in this appeal, were first responders.


James Kelly was an Orangetown Police Officer who was on duty during Hurricane Sandy.  He was directed by his supervisor to take shelter and only respond to life-threatening calls.  He and a fellow officer responded to a house onto which a tree had fallen trapping the occupants inside.  Kelly noticed that the tree had knocked down half the roof, a rear wall, and the structure appeared very unstable.  In fact, one of the occupants had been impaled by the tree and driven through the floor into the basement, and the other occupants were trapped beneath debris. Officer Kelly felt pain in his shoulder as he moved the debris but continued to perform his life saving tasks.  When he noted that a rafter from the roof began to fall, Officer Kelly braced the rafter further injuring his shoulder and neck.


Pat Sica was a firefighter for the City of Yonkers who responded to an aided call for two unconscious individuals at a local supermarket.  When he arrived he found the two individuals, one outside the walk-in freezer and one inside.  He did not notice any fumes or chemicals, or smell or take notice of any odors in the area.  He performed CPR for roughly 25 to 30 minutes on the individual inside the freezer.  Shortly after assisting the victims, he began to feel nauseous and light headed.  He was taken to the emergency room, and it was determined that he had been exposed to toxic gases in both the supermarket and the walk-in freezer.


In analyzing these two claims, the Court went back to the past history of the accident definition as it related to this area of case law.  It cited to the terms that we have shared with you for years: “unexpected, out of the ordinary, and injurious in impact”.  Believe it or not, that definition and language dates back to a case from 1958.  And that language is still being quoted today, sixty years later!  The Court then cited to the lineage of cases that holds that the precipitating accidental event cannot be a risk of the nature of the work performed.  This is sometimes repeated back to us as the “inherent risk” standard.  The Court spent several pages then citing to countless other cases that have adopted (and narrowed and limited) that definition dating back to the early 1980s.

After performing this exhaustive history lesson on cases in this area, the Court came to its all too familiar conclusion: neither one of the events with Officer Kelly or Firefighter Sica constituted “accidents” under the law.


The Court concluded that the substantial evidence of record supported the Retirement System and Comptroller’s decision to find these as “incidents” rather than “accidents,” thus disqualifying Kelly and Sica for 3/4s (accidental disability retirement).  The logic dealt more with the procedural notion that the final decision in these matters rests with the Comptroller, and unless that decision defies all logic, then the decision must be affirmed by the courts.  They found that it was at least rational and reasonable for the Retirement System to conclude that Officer Kelly, though also instructed to seek shelter, was only performing the life-saving activities that he was instructed to perform by his supervisor and injuries incurred during the performance of those duties was a risk inherent in the duties of a police officer.  Similarly, for Firefighter Sica, the Court found that responding to scenes with unknown toxins in the air is not uncommon for  firefighters who may be posed with those type of hazards on a daily basis but are still charged with responding to aided calls.


As an avid reader of the Legal Report, we are sure that you are not shocked by this conclusion.  How could you be?  We have seen this countless times over the past plus two decade(s). The courts are consistently using every angle to deny accidental disability benefits.  But after reading those accident descriptions, one would be in a huge group of people that feels that those should clearly be “accidents” under the law.             There was one judge at the Court of Appeals who would fall into that category and who disagreed with the majority decision (at least as it regarded Officer Kelly – he happened to agree with the rest of the Court on Firefighter Sica).     In a scathing dissent, Judge Wilson attacked the almost wild west mentality and complete inconsistency in the substantive case law on this issue.  He cited example after example of seemingly illogical conclusions made by the courts over the years on what would be an “accident” versus an”incident.”  For instance, he sarcastically writes, “If your superior officer gives you a choice between participating in a boxing match or a tug-of-war, pick the boxing match, because injury in the former, but not the latter, qualifies as accidental.” (As an exercise, ask yourself what’s the difference, in terms of “accidental” injury being injured in a boxing match versus a tug of war?). He simply has noted what we have all known for years – consistency in this area is not the hallmark of the Retirement System.


Where does this leave accidental disability pensions and claims in the wake of these decisions?  From our perspective, unfortunately nothing has really changed. Judge Wilson opines that this area of the law requires legislative overhaul, and in the interim, while waiting for that fantasy to come true, he believes that the Retirement System should instead view these cases in light of what the risks are that you have bargained for by becoming police officers.  While we believe that would be a fair resolution to this analysis, we simply do not believe that the Retirement System would dare entertain this standard.  Therefore, we continue to stress the same advice we have for many years in this area.  When you are injured in the line of duty, the initial documentation matters as much as anything else that will come later in the claim.  Thus, the initial reports must be thorough, factual, and complete.  While we do not advocate or believe it necessary to write a novel for each accident on the job, we do know that the reports will need to be full of the facts that will support the finding that the event is out of the ordinary, unexpected, and outside of the control of the injured police officer.


Of course, if you have any questions or comments regarding this important Legal Report article, or any other topic, please do not hesitate to contact our office at 516-941-4403, or by e-mail at  In the meantime, please stay safe, but if you do find yourself injured, let them all be as a result of an “accident”!

Last Updated : December 29, 2023
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