Misstep Falls Are Not “Accidents,” and Two-Year Continuous Light-Duty Assignment Sets the Incapacity Baseline for Performance-of-Duty Disability

1. Introduction

Matter of Cuppek v DiNapoli (2025 NY Slip Op 02632 [238 AD3d 1238] [3d Dept May 1, 2025]) arises from a police officer’s applications for (i) accidental disability retirement and (ii) performance of duty disability retirement benefits after an October 2015 stair incident in an airport parking structure.

The petitioner, Stephen Cuppek, alleged permanent incapacity due to injuries sustained when he stumbled while descending stairs. The respondent, Thomas P. DiNapoli, State Comptroller, denied:

  • Accidental disability retirement (Retirement and Social Security Law § 363), finding the incident was not an “accident.”
  • Performance of duty disability retirement, finding petitioner was not permanently incapacitated (as measured against the proper duty baseline) and that reasonably safe treatment was available.

After a hearing, a redetermination, and administrative review, the Comptroller affirmed the denials. Petitioner then brought a CPLR article 78 proceeding, which was transferred to the Appellate Division, Third Department. The Third Department confirmed the Comptroller’s determination and dismissed the petition.

2. Summary of the Opinion

The Third Department held that substantial evidence supported both denials:

  1. Accidental disability: The record supported the finding that the injury resulted from petitioner’s own “missed step,” which—without more—is not “out of the ordinary” enough to qualify as an “accident” under the Retirement and Social Security Law. The court deferred to the Hearing Officer/Comptroller on credibility where petitioner’s later testimony (slippery substance) conflicted with contemporaneous reports (misstep).
  2. Performance of duty disability: Because petitioner was continuously assigned to light-duty work for the relevant two-year period, his incapacity had to be measured against light-duty functions under 2 NYCRR 364.3(b). Substantial evidence also supported that a reasonably safe surgical procedure was available that could allow him to perform light duty, and petitioner failed to justify refusing it.

3. Analysis

A. Precedents Cited

1) Defining “accident” and excluding ordinary missteps

  • Matter of Walsh v DiNapoli, 214 AD3d 1282 (3d Dept 2023): The Opinion relies on Walsh for two key propositions: (i) petitioner bears the burden of proving an “accident,” and (ii) a fall caused by one’s own misstep, “without more,” is generally not accidental. Walsh also supports deference to credibility determinations when testimony conflicts with contemporaneous documents.
  • Matter of Hamblin v DiNapoli, 229 AD3d 922 (3d Dept 2024): Cited for the standard “accident” definition (sudden, fortuitous, unexpected, out of the ordinary, injurious) and substantial-evidence review.
  • Matter of Bodenmiller v DiNapoli, 43 NY3d 43 (2024): Used as high-court reinforcement of the controlling “accident” framework; the Third Department situates its application within Court of Appeals guidance.
  • Matter of Stefanik v Gardner, 236 AD3d 75 (3d Dept 2025): Cited alongside Bodenmiller and Hamblin to anchor the governing definition and its application in recent Third Department jurisprudence.
  • Matter of Kelly v DiNapoli, 30 NY3d 674 (2018): Court of Appeals authority supporting the “misstep without more” principle—critical to rejecting petitioner’s attempt to recharacterize the event as accidental.
  • Matter of Stancarone v DiNapoli, 161 AD3d 144 (3d Dept 2018): Reinforces that ordinary slips/missteps in the course of regular activity generally fall outside the statutory “accident” concept.
  • Matter of Kubala v New York State & Local Retirement Sys., 220 AD3d 993 (3d Dept 2023): Central to the court’s handling of conflicting narratives: inconsistencies between sworn testimony and contemporaneous reports present credibility issues for the factfinder.
  • Matter of Young v DiNapoli, 208 AD3d 1411 (3d Dept 2022) and Matter of Assmann v DiNapoli, 95 AD3d 1487 (3d Dept 2012): Further support the deference owed to credibility findings and determinations that a misstep-based fall is not an “accident.”

2) Light-duty baseline under 2 NYCRR 364.3(b)

  • Matter of Lamb v DiNapoli, 128 AD3d 1320 (3d Dept 2015): Cited for the rule that if an applicant has been continuously assigned to light/restricted duties for at least two years before filing, incapacity is measured against that assignment.
  • Matter of Keil v New York State Comptroller, 66 AD3d 1317 (3d Dept 2009): Provides a crucial interpretive gloss: “continuously assigned” does not require continuous performance and is not interrupted by sick leave.
  • Matter of County of Erie v DiNapoli, 180 AD3d 1137 (3d Dept 2020): Supplies the decisive formulation adopted here: the dispositive inquiry is assignment to light-duty work, not whether the applicant actually performed it without interruption.
  • Matter of Hannon v DiNapoli, 226 AD3d 1122 (3d Dept 2024): Used to validate applying the light-duty standard where substantial evidence shows continuous light-duty assignment during the relevant period.

3) Refusal of reasonably safe treatment and permanent incapacity

  • Matter of Diesel v DiNapoli, 185 AD3d 1135 (3d Dept 2020), Matter of Solarino v DiNapoli, 171 AD3d 1434 (3d Dept 2019), and Matter of McGarry v DiNapoli, 153 AD3d 1109 (3d Dept 2017): These cases supply the governing framework: the Comptroller may consider whether reasonably safe treatment is available to correct the disability, and the petitioner bears the burden of justifying refusal. Cuppek applies this directly to a recommended two-level spinal fusion.
  • Matter of Jackson v DiNapoli, 87 AD3d 1258 (3d Dept 2011) and Matter of Wilkinson v DiNapoli, 86 AD3d 851 (3d Dept 2011): Cited as additional support for denying benefits when an applicant refuses indicated treatment without adequate justification and the record supports likely functional improvement.

B. Legal Reasoning

1) Accidental disability: “accident” requires more than a routine misstep

The court treated the case as turning on what happened factually and whether that factual finding met the legal definition of “accident.” Petitioner testified to a “slippery substance,” but his application, the employer’s report, and contemporaneous reports—including an email to his supervisor—consistently described that he “missed a step” and slipped off the edge, catching the railing.

The Opinion emphasizes that conflicts between later sworn testimony and contemporaneous documentation create a credibility issue for the factfinder (Hearing Officer/Comptroller), to whom courts defer on substantial-evidence review. Crediting the contemporaneous reports, the Comptroller could rationally find the incident was a self-caused misstep, which precedent treats as insufficiently unexpected/out-of-the-ordinary to be an “accident.”

2) Performance of duty disability: identify the correct “duty baseline” first

Before assessing medical incapacity, the court required identifying the job duties against which incapacity is measured. Under 2 NYCRR 364.3(b), if the member has been continuously assigned to light/restricted duties for at least two years before filing, the incapacity assessment is made against that light-duty assignment.

Petitioner filed on February 26, 2018, creating a two-year lookback beginning in February 2016. The employer letter documented extended light-duty assignments (communications, administrative roles at the academy, pistol licensing, and property control). Although there were disputed/unclear periods and leave time, Keil and County of Erie made clear that continuous assignment is not broken by absence on sick leave and does not require uninterrupted performance. The Hearing Officer credited the employer’s documentary records over petitioner’s imprecise testimony; the court deferred and held substantial evidence supported the light-duty baseline.

3) Permanent incapacity and available treatment: refusal must be justified

The medical proof included a recommended two-level spinal fusion. Petitioner declined, citing (i) the neurosurgeon could not “guarantee” success and (ii) a friend’s unfavorable outcome. The pain management specialist testified petitioner had exhausted nonsurgical options and conceded that if surgery succeeded, petitioner would be able to perform at least light duty. The retirement system’s evaluating orthopedic surgeon also characterized the procedure as reasonably safe, with a small risk of significant complication, and opined that with a good result petitioner could perform the described light duties (and even questioned whether surgery was necessary based on imaging).

Applying Diesel/Solarino/McGarry, the court held substantial evidence supported that reasonably safe treatment existed that could restore light-duty capacity. Because petitioner did not provide a legally sufficient justification for refusal, denial of performance of duty disability benefits was sustained.

C. Impact

  • Reinforces the “misstep without more” line: Claimants alleging a slip/fall must be able to substantiate an external, unexpected hazard or condition, not merely reframe an ordinary stumble after the fact. Contemporaneous reports will often be outcome-determinative.
  • Elevates documentation in credibility contests: The decision underscores that early incident reports, emails, and employer forms can outweigh later hearing testimony, and reviewing courts will rarely disturb the Comptroller’s credibility choices where supported by substantial evidence.
  • Clarifies the practical reach of the light-duty regulation: Agencies and applicants should expect that long-term light-duty assignment—despite intermittent leave—will set the benchmark, narrowing the pathway to a finding of “permanent incapacity” if the member could perform sedentary/administrative functions.
  • Signals strict scrutiny of treatment refusal: A generalized fear of surgery or lack of a “guarantee” is unlikely, standing alone, to justify refusal where physicians describe the procedure as reasonably safe and potentially restorative of light-duty capacity.

4. Complex Concepts Simplified

  • CPLR article 78: A New York procedure to challenge administrative actions. Here, the court reviews whether the Comptroller’s determination is lawful and supported by the record.
  • Substantial evidence: Not “beyond a reasonable doubt” or even “more likely than not.” It means “enough relevant proof that a reasonable mind could accept” to support the agency’s conclusion. If substantial evidence exists, courts generally do not reweigh the facts.
  • “Accident” (Retirement and Social Security Law § 363 context): A sudden, unexpected, out-of-the-ordinary event. Routine workplace movements or ordinary missteps typically do not qualify.
  • Credibility determination: When testimony conflicts with documents, the Hearing Officer/Comptroller decides whom to believe. Appellate courts usually defer to that assessment.
  • 2 NYCRR 364.3(b) “continuously assigned” light duty: If an employee is assigned to restricted duties for at least two years before applying, the disability question becomes: can they perform those restricted duties? Being out sick does not necessarily break “continuous assignment.”
  • Reasonably safe treatment and refusal: The agency may consider whether medical treatment could restore capacity. If so, the applicant must give a persuasive reason for refusing it, or risk denial for failure to prove permanent incapacity.

5. Conclusion

Matter of Cuppek v DiNapoli confirms two powerful administrative-law themes in New York public-employee disability retirement litigation: (1) ordinary missteps—especially when corroborated by contemporaneous reports—do not become statutory “accidents” through later re-description, and (2) performance of duty disability turns first on the correct duty baseline (often light duty under 2 NYCRR 364.3[b]) and then on whether permanent incapacity is shown, including whether the applicant unjustifiably refused reasonably safe treatment that could restore the ability to perform the baseline duties.