top of page

Third Department Denies Disability Benefits to Cop Who Fell Getting Coffee While On Patrol

Retirement & Social Security Law (RSSL) § 63 guarantees an "accidental disability retirement allowance" to most employees who are enrolled in the state retirement system and who are "[p]hysically or mentally incapacitated for performance of duty as the natural and proximate result of an accident ... sustained in such service." RSSL § 363 provides a similar benefit to police and firefighters. The accidental disability retirement can be significantly more than the usual allowance that the person would get on early retirement. Unfortunately, the requirements for proving an accident can be onerous.

What do I mean? Well, at the outset, an "accident" must be "sudden, unexpected and not a risk of the work performed." Kelly v. DiNapoli, 30 N.Y.3d 674, 681 (2018). So when a janitor slipped and fell while mopping a floor – which sounds to ordinary ears like an accident sustained while in service – he was denied benefits, because he was a victim of the "risk inherent in the performance of his routine duties." Covel v. N.Y.S. Emps. Ret. Sys., 84 A.D.2d 902 (3d Dep't 1981). Same result when a police officer hurt his back leaning over the hood of a car to place a traffic ticket. Lichtenstein v. Bd. of Trs., 57 N.Y.2d 1010 (1982). In plain English, the accident can't have been an expected part of the job.

But it can't be too far from the job either – and that requirement can be strict. Take Shelby Pileggi, a Westchester County police officer. One morning, she was assigned to patrol duty and left the station in her patrol car. "She stopped for coffee at a nearby store and, when she attempted to exit her vehicle, she slipped on ice and fell backward into the vehicle, sustaining multiple injuries that left her unable to return to work." Pileggi v. DiNapoli, 2023 NY Slip Op 05642 (3d Dep't Nov. 9, 2023). No accidental disabiliy retirement for Ms. Pileggi. She was unable to recover because getting coffee was a purely "personal activity." It didn't matter, the court said, that she was "on duty" in the sense that her radio was on and she would have dropped everything to respond to a call if one came in. Buying coffee – not work.

The cases, which have dramatically restricted public employees' ability to receive accidental retirement disability allowances, can be a trap for the unwary. If you're a public employee who's been permanently disabled on the job and denied retirement benefits, you need counsel to navigate the system and give you the best possible chance of a livable pension. Use the contact form on this website to reach out today.


Recent Posts

See All


bottom of page