majority">

OPINION OF THE COURT

Asch, J.

Petitioner was a probationary police officer. As part of her training, she was required to take a boxing lesson at the Police Academy. In the course of such boxing session in a makeshift gym, she twisted her right knee. When she was being transported by police personnel from the Academy, the stretcher on which she was being borne, collapsed. Petitioner fell to the ground, further injuring her right ankle. She underwent surgical repair of the right knee. Thereafter, an application was made by the Police Commissioner for disability retirement on her behalf. After examination, the Medical Board concluded that petitioner was unable to perform full police duty because of a permanent defect of the right knee directly related to the line-of-duty injury incurred while boxing. It recommended accident disability retirement. Subsequently, the Board of Trustees considered petitioner’s application on July 12, 1983, August 23, 1983, March 27, 1984 and May 14, 1984. Petitioner was denied an accident disability pension by a 6 to 6 tie vote at the last meeting and was awarded only ordinary disability. (See, Matter of City of New York v Schoeck, 294 NY 559.)

Special Term granted respondents’ motion to dismiss the instant CPLR article 78 petition on the ground that petitioner’s injury was not the result of an accident, as required by Administrative Code of the City of New York § B18-43.0. We disagree and, therefore, reverse.

Respondents do not deny that petitioner’s disability was caused as a result of an injury sustained in the line of duty. However, they maintain that her knee injury, due to her action in stepping back and falling off balance to avoid a punch, was not "accidental” within the meaning of Administrative Code § B18-43.0 and that, therefore, she is not entitled to retire with accident disability benefits. The Court of Appeals has held that in order to obtain accident disability retirement, a petitioner’s injury must be the result of a *165" 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ (Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010, 1012.) The court later contrasted "injuries sustained while performing routine duties but not resulting from unexpected events”, which are not accidental, with those sustained by "a precipitating accidental event * * * which was not a risk of the work performed”, which are. (Matter of McCambridge v McGuire, 62 NY2d 563, 568.)

The unfairness of this approach is illustrated in one of the dissents in Matter of Knight v McGuire (94 AD2d 623, 625, revd 62 NY2d 563): "Applying the rule as thus enunciated would result in the anomalous and unfair consequence that a policeman, shot while pursuing an alleged perpetrator of a crime, would as a matter of law be excluded from an accidental disability retirement because his injuries were 'sustained during the performance of an employee’s regular duties resulting from risks inherent in the task being performed’ ”.

It seems anomalous, as in the case before us, that a police officer, who is disabled as a result of an "accident” in performing her required duties, is disqualified from being awarded an accident disability retirement.

Fortunately for petitioner in the matter under our consideration, on the actual facts before this court, even under the state of law as it is presently applied, she should succeed in her article 78 petition.

Petitioner herein asserts on appeal that, during a boxing lesson which was conducted in an overcrowded room, not a gymnasium, with no boxing ring, ropes or other barriers, she backed up to avoid a punch and "got tangled up” with a spectator, causing her to fall. This collision with a spectator would obviously be unexpected and out of the ordinary, and therefore accidental. Although these "new” facts were known to the Trustees by July 24, 1983 or earlier, respondents contend that petitioner raised them for the first time in the Supreme Court upon her motion to reargue and renew the earlier determination dismissing her petition. These "new facts” were contained in the record and it appears that the Board of Trustees was apprised of them before it took its action of May 14, 1984. I am inclined to agree with respondents that petitioner should have expressly raised the claim of colliding with a spectator in a crowded gym in the first instance at the Supreme Court, since these facts were conced*166edly known to her at that time. Nevertheless, it is clear that these facts were available to that court.

It also seems significant that the record submitted to the nisi prius court included a transcript of the May 14 hearing of the Board of Trustees. Included in that transcript was the following description of the events preceding the accident from Police Officer Richard Cummins:

"While assigned to the Police Academy mini-gym on the third floor on 5/1/82 at approximately 1730 hours I observed a line of duty injury to P.O. Carr. While boxing with P.O. Cronin, Number 82-46, P.O. Carr and P.O. Cronin were told the following by Instructor P.O. Willie Freeman: 'Hit her in the face and let her know what it feels like to get hit by a real man.’ Then he said 'remember company 46 who’s rating you.’ After those statements by P.O. Freeman, P.O. Carr sustained a severe injury to her right knee. She was then removed on a canvas stretcher to the hospital.

"It should be noted that at the time and place of the occurrence, the mini-gym was extremely overcrowded. Thus turning a simple boxing exercise into a hazardous situation.”

Viewed from this perspective, it is clear that petitioner’s misstep and fall to avoid that punch was not solely "the result of activity undertaken in the performance of ordinary employment duties”, but was sudden, fortuitous and out of the ordinary. (Matter of Lichtenstein v Board of Trustees, supra, at p 1012.)

As we have been instructed to do by the Court of Appeals, our focus must be not on the petitioner’s job assignment, i.e., here boxing in a training exercise, but upon the precipitating cause of injury. (Matter of McCambridge v McGuire, supra, at p 569.) Here the precipitating cause of injury was clearly not boxing per se. The accident might well have been stimulated by the anxiety-provoking, brutal and sexist comment of the boxing instructor to petitioner’s sparring partner: "Hit her in the face and let her know what it feels like to get hit by a real man”, with the implied threat to the partner concerning his rating ("remember company 46 who’s rating you”) to insure extraordinary effort on his part. This was not the ordinary situation faced by the police recruit in a sparring exercise, simply dodging jabs and hooks of varying degrees of force with no personal animus impelling those blows. Petitioner faced an unusual and unanticipated situation which was certainly out of the ordinary, and therefore her line-of-duty injury was accidental.

*167The bona fides of the claim are underscored by the fact that petitioner, a young, inexperienced probationer, did not file a line-of-duty report, on or soon after the date of the incident, which set forth that she had also fractured her right ankle. (An amended report was accepted as of April 22, 1985.) This injury was sustained when the stretcher she was carried on collapsed and she fell to the floor. Although petitioner did not seek to magnify her injuries, sadly the police department sought to minimize them. Thus, the commanding officer of the Police Academy, in response to a request for information from the Board of Trustees, specifically noted that she "was prevented from falling off the stretcher.” However, there are statements in the record, inter alia, by Police Officers Murphy, Gallagher, Hauck and Crosson, made before the Academy report to the Board, attesting to the fact that the stretcher broke and petitioner fell to the ground.

It also seems significant that, at the Board meeting which denied accident disability retirement to petitioner, Trustee Lieutenant Gebhardt asserted that accident disability was approved for a male officer who injured his wrists when he fell backwards during a boxing class at the Police Academy. Lieutenant Gebhardt summed up his feeling about denial of accident disability to petitioner: "I find it very disturbing, in light of the fact that we gave it to this one officer, maybe because he was a male”.

It is possible, although not entirely satisfactory, to reconcile the cases in this area. However, there is one distinction in the matter before us which makes a powerful argument for the result which we reach. On the facts presented, it seems clear that the police department itself created the condition which resulted in the accident and ensuing injury. Therefore, it seems quite appropriate that petitioner should be compensated for her line-of-duty injury.

Accordingly, the judgment of the Supreme Court, New York County (Beatrice Shainswit, J.), entered February 13, 1985, which dismissed the petition herein, should be reversed, on the law, without costs, the petition granted and the proceeding remanded to respondents for determination of petitioner’s accident disability pension benefits. (See, Matter of Canfora v Board of Trustees, 60 NY2d 347, 352.)

Citation profile

How this case has been treated — in progress