()

A police officer who tripped over suddenly-swelling fire hoses during a chaotic rescue effort is not entitled to accidental disability retirement benefits, a split Manhattan appellate court said.

Courts have defined accidents as “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” when deciding if police officers were eligible for the more generous benefits. Here, a 4-1 panel of the Appellate Division, First Department, found that Robert Pastalove’s mishap did not meet that standard.

“While it is true that petitioner was a police officer, not a firefighter, it cannot be said as a matter of law that his ordinary employment duties did not include responding to a fire emergency. As the [New York City Police Pension Fund] Board of Trustees had before it some credible evidence of lack of causation, it did not err as a matter of law in concluding that petitioner’s disability was not the result of an accident,” the unsigned majority ruling said in Matter of Pastalove v. Kelly, 11110.

The ruling upheld a lower court’s denial of Pastalove’s attempt to void a tie decision from the New York City Police Pension Fund Board of Trustees that granted him ordinary disability retirement benefits.

Dissenting Justice Sallie Manzanet-Daniels (See Profile) said what happened to Pastalove was no mere misstep because he “encountered an unexpected and non-stationary object in the midst of a chaotic, frenetic scene.”

She said “the fact that a police officer may have familiarity with fire scenes generally, or has responded to fire scenes in the past, is not the equivalent of familiarity or knowledge of a particular fire scene sufficient to render the placement or movement of objects ‘expected’; each fire scene is different and none are stationary or controlled.”

Justices David Friedman (See Profile), Richard Andrias (See Profile), Rosalyn Richter (See Profile) and Paul Feinman (See Profile) joined the majority. The matter was argued on Oct. 30.

Pastalove, a uniformed officer since 1999 at age 40, was the first emergency responder to spot the 2008 pre-dawn residential fire on Manhattan’s Upper West Side.

He parked his vehicle in front of the building and rushed through smoky hallways and stairwells, telling tenants to evacuate.

When he exited, firefighters told him to move his car.

As Pastalove went to his vehicle, two hoses lying flat on the ground charged with water. He tripped and injured his right wrist and hand.

Pastalove applied for accidental disability retirement benefits about a year and a half later.

According to Pastalove’s appellate attorney, Chet Lukaszewski of Lake Success, accidental disability benefits are three quarters of an applicant’s final salary and essentially tax-free whereas ordinary retirement benefits are one-half of a final salary and taxable.

Though the amounts of the contrasting benefits were not in the case’s record, Lukaszewski said the difference was “significant.”

In any event, the pension fund’s medical board concluded Pastalove was permanently injured and recommended the accidental benefits.

The fund’s board of trustees did not dispute Pastalove’s injury. But it scrutinized the causation question to determine whether his injuries were the result of reasonable work risks or out-of-the ordinary, sudden mischance.

It was deadlocked 6-6 on Pastalove’s bid for accidental benefits. Half the board members concluded the injury was due to Pastalove’s misstep or lack of attention to his surroundings.

As was custom following a tie, the board awarded the ordinary disability retirement benefits.

Pastalove filed an Article 78 petition to overturn the board’s determination.

Supreme Court Justice Alexander Hunter Jr. denied the petition in July 2012, saying “the charging or movement” of fire hoses could not be seen as unexpected.

Pastalove appealed.

In its affirmance, the majority observed “not every line of duty injury will result in an award” of accidental disability benefits.

The issue presented to the court was “whether, reviewing the record, it can be said, as a matter of law, that petitioner’s disability was the natural and proximate result of a service-related accident.”

Pointing to various cases stemming from knee twists and caught feet, the majority said “normal risks in most jobs are not unexpected.”

And despite the dissent’s point of view, the majority said, “We do not regard the charging of fire hoses at the scene of a fire as a sudden, fortuitous, or unexpected event.”Alexander W. Hunter, Jr.

Manzanet-Daniels said she could not “countenance such constrictive reasoning, nor its result.” She said “the majority’s decision effectively penalized an officer who, with no thought to his own health or safety, evacuated residents from a burning building, and will dissuade first responders in the future from taking similar heroic action.”

Lukaszewski, noting the typical duties a police officer expects to perform at a fire are things like perimeter crowd control, said he and his client were “absolutely exploring our appeal options” but had made no decision yet.

“We disagree with the majority decision. We greatly agree with the dissenting decision,” he said.

Assistant Corporation Counsel Paul Rephen appeared for the city. New York City Law Department spokesman Nicholas Paolucci said the department was pleased with the decision.