
    In the Matter of Gerard A. McCambridge, Appellant, v Robert J. McGuire, as Police Commissioner of the New York City Police Department and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents. In the Matter of Richard Knight, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of of the Police Pension Fund, Article II, et al., Respondents.
    Argued May 1, 1984;
    decided July 2, 1984
    
      POINTS OF COUNSEL
    
      Joseph O. Giaimo for appellant in the first above-entitled proceeding.
    Appellant has become disabled as a result of an accidental injury received in city service. {Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Menna v New York City Employees’ Retirement System, 59 NY2d 696; Matter of Valentin v Board of Trustees, 59 NY2d 702; Matter of Shannon v Board of Trustees, 59 NY2d 852; Matter of Schussler v Codd, 59 NY2d 698; Matter of McManus v McGuire, 59 NY2d 853.)
    
      Raymond E. Kerno and Richard Hartman for appellant in the second above-entitled proceeding.
    I. The denial of petitioner-appellant’s application for accident disability retirement was arbitrary and capricious since petitioner-appellant was disabled as the result of an accidental injury sustained in city service within the meaning of section B18-43.0 of the Administrative Code of the City of New York. {Matter ofDrayson v Board of Trustees, 37 AD2d 378, 32 NY2d 852; Matter of Schweitzer v Codd, 63 AD2d 66; Matter of Walsh v Codd, 68 AD2d 805; Johnson Corp. v Indemnity Ins. Co., 6 AD2d 97, 7 NY2d 222; Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Menna v New York City Employees’ Retirement System, 91 AD2d 537; Matter of Schussler v Codd, 91 AD2d 890; Matter ofCardone v Codd, 91 AD2d 909; Matter of Shannon v Board of Trustees, 92 AD2d 528.) II. The denial of petitioner-appellant’s application for accident disability retirement by respondents was arbitrary and capricious. Respondent erroneously based its determination on a finding that since petitioner-appellant’s service-connected injury was not related to crime control, it was not an accident within the meaning of section B 18-43.0 of the Administrative Code. Since this interpretation is devoid of statutory foundation, it must be set aside and the judgment below must be reversed. (Uniformed Firefighters Assn, v Beek-man, 52 NY2d 463.)
    
      Frederick A. O. Schwarz, Jr., Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondents in the first and second above-entitled proceedings.
    The injury which caused petitioners’ disability did not, as a matter of law, constitute an accident for the purposes of accident disability retirement under section B18-43.0 of the Administrative Code. Accordingly the determination by the Board of Trustees of the Police Pension Fund to deny their applications for accident disability retirement and to retire them on half pay for ordinary disability should not be set aside. (.Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Valentin u Board of Trustees, 91 AD2d 916, 59 NY2d 702; Matter of Shannon v Board of Trustees, 92 AD2d 528, 59 NY2d 852; Matter of Del Grosso v McGuire, 113 Mise 2d 440, 93 AD2d 1002, 59 NY2d 606; Matter of Menna v New York City Employees’ Retirement System, 91 AD2d 537; Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, 55 NY2d 606; Matter of Cavarretta u Regan, 86 AD2d 706; Matter of Anguish v Regan, 80 AD2d 695.)
   OPINION OF THE COURT

Per Curiam.

Petitioners in these article 78 proceedings have suffered disabling injuries during the course of their employment as New York City police officers. The issue in each case is whether the injury was the natural and proximate result of an accidental injury entitling the petitioner to an accident disability pension. The Board of Trustees denied accident disability pensions by a 6-6 vote and awarded ordinary disability pensions.

Petitioner McCambridge was a detective in the New York City Police Department. On November 8, 1979 he was assigned to the Queens County District Attorney’s office. While performing his duties he was sitting at the desk of a Detective Frank when Frank approached the desk to remove some papers from the drawer. Petitioner stood up to move away, placing his hand on Frank’s shoulder to steady himself. Frank unexpectedly moved away from the desk, however, causing petitioner to lose his balance and fall to the floor, twisting his knee as he did so. Surgical repair of the knee ligaments was required and Detective McCambridge is permanently disabled from performing his duties as a result.

Petitioner Knight was a patrolman in the New York City Police Department. On April 15,1979, while performing his duties, petitioner was about to enter his patrol car when he slipped on wet pavement, fell backwards and injured his left elbow. Surgical repair of the elbow was required and Patrolman Knight is permanently disabled from performing his duties as a result. The Medical Board found that the injury was accidentally sustained.

The Appellate Division affirmed judgments dismissing the petition in each case. In Knight the court referred to the language of our decision in Matter of Lichtenstein v Board of Trustees (57 NY2d 1010, 1012) which stated that an injury would not be accidental if it “occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties”. On the basis of that statement, the court found that petitioner had not sustained an accidental injury when he slipped on the pavement because the injury was sustained during the performance of his regular duties and resulted from a risk inherent in the job. The judgment dismissing the petition in McCambridge was affirmed by the Appellate Division on the authority of the court’s ruling in Knight. The error made by the Appellate Division and the dissent is in focusing on the petitioner’s job assignment, not on the precipitating cause of injury.

In order to obtain accident disability retirement, a petitioner must establish that he suffered physical or mental incapacitation “as a natural and proximate result of an accidental injury received in * * * city-service” (Administrative Code of City of New York, § B18-43.0). Not every line of duty injury will result in an award of accident disability. The injury must be the result of a “‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’” (Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010, 1012, supra). In each of these claims the injuries were sustained in the line of duty and were accidents within the common sense definition adopted in Lichtenstein. To be distinguished are injuries sustained while performing routine duties but not resulting from unexpected events, e.g., back strains sustained while putting a tire in the trunk of a city vehicle (Matter of Menna v New York City Employees’ Retirement System, 59 NY2d 696), while leaning over to place a ticket on a car (Matter of Lichtenstein v Board of Trustees, while lifting trash cans (Matter of Valentin v Board of Trustees, 59 NY2d 702), or a loss of hearing sustained as a result of practice sessions on the pistol range (Matter of Schussler v Codd, 59 NY2d 698). It is critical to the determination in each of the present cases that there was a precipitating accidental event — in one case the loss of balance and fall to the floor; in the other, the slip on the wet pavement and fall which was not a risk of the work performed, as in Covel (Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606).

Respondents contend that the court is bound by the decision of the Board of Trustees after a 6-6 vote (see Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of City of New York v Schoeck, 294 NY 559). The court may set aside a denial of accident benefits, however, when it concludes that the applicant is entitled to them as a matter of law. In these proceedings, decided by the Board of Trustees before the Lichtenstein decision, the Board applied an erroneous legal standard of accidental injury and therefore its decisions are set aside and both matters remitted to it for determination of the petitioners’ accident disability pension benefits.

Accordingly, in each case the order of the Appellate Division should be reversed, with costs, the petition granted and the matter remitted to Supreme Court, New York County, with directions to remand to respondents for further proceedings in accordance with this opinion (see Matter of McCambridge v McGuire, 94 AD2d 632; Matter of Knight v McGuire, 94 AD2d 623).

In reconsidering its decision, the Board should determine whether the injuries sustained by the petitioners were the result of a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’”. (Matter of Lichtenstein v Board of Trustees, supra, at p 1012.) In applying this newly adopted standard of accidental injury to these cases, it is for the Board to say in the first instance from all the facts and circumstances present whether the injuries complained of here resulted from sudden, fortuitous mischances that were unexpected and out of the ordinary. To say, as the majority does, that the injuries complained of by petitioners were accidentally sustained, as a matter of law, within the meaning of the Administrative Code of the City of New York (§ B18-43.0), deprives the Board of making this factual determination in the first instance.

While it is proper for this court, as well as the Appellate Division, to set aside an administrative determination where it is evident that the administrative body in reaching its decision may have applied an erroneous legal standard in view of a subsequent decision of our court, neither the Appellate Division nor this court has the power to upset the determination of an administrative board on a question of fact unless there is no support for it. The courts have “ ‘no right to review the facts generally as to weight of evidence, beyond seeing to it that there is “substantial evidence” (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 108, p 460; 1 NY Jur, Administrative Law, §§ 177, 185; see Matter of Pell v Board of Educ., supra, at p 230.)

It is the sole province of the Board to determine, applying the Lichtenstein legal standard of accidental injury, whether the injuries complained of here were the result of an event which was “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”, and not for this court to say that they were. Even assuming that petitioners’ injuries resulted from sudden fortuitous mischances that were unexpected and injurious on impact, as will usually be the case whenever a person sustains a non-self-inflicted injury, it cannot reasonably be said, as a matter of law, that the injuries complained of here were the result of events which were “out of the ordinary”.

Petitioner Knight was entering his patrol car when he slipped and fell, injuring his elbow. It is difficult to imagine what could be more ordinary and routine than a patrolman entering his patrol car. In a case indistinguishable from this, a Comptroller’s determination that a janitor who slipped, fell and injured himself while performing ordinary duties did not suffer an accidental injury was not arbitrary or capricious. (Matter of Covet v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606.) It would seem to follow that in this case, while reasonable minds might differ as to whether or not petitioner Knight suffered an accidental injury within the meaning of section B18-43.0 of the Administrative Code of the City of New York, it cannot be said, as a matter of law, that petitioner sustained an accidental injury. (See Matter of Meyer v Regan, 99 AD2d 582.)

Nor can that be said as to petitioner McCambridge. In that case, Detective McCambridge was simply getting up from his chair when he lost his balance and fell to the floor, injuring his knee. As in Officer Knight’s case, the petitioner could not have been performing a more common or routine task — getting out of his chair — when he injured himself. Thus, the requirement in Matter of Lichtenstein v Board of Trustees (supra) that the event leading to the injury be “out of the ordinary” could very well be found to be absent by the Board of Trustees. Nevertheless, the majority today decides not to remit the proceedings to the Board for a rehearing under the proper legal standard but, instead, substitutes its judgment for that of the Board and makes a finding that petitioner sustained an accidental injury within the meaning of the city ordinance, as a matter of law. It is especially difficult to understand how this court can reach this result so soon after reinstating the Board of Trustees’ determination that a patrolman who injured his back while leaning over a car to place a parking ticket on it had not sustained an accidental injury. (See Matter of Lichtenstein v Board of Trustees, supra.)

For all these reasons, I would reverse and remit to the Board of Trustees to reconsider the claims of the petitioners in light of our decision in Matter of Lichtenstein (supra).

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Judge Jasen dissents in part and votes to reverse and remit for reconsideration in accordance with his opinion.

In each case: Order reversed, with costs, petition granted and matter remitted to Supreme Court, New York County, with directions to remand to respondents for further proceedings in accordance with the opinion herein. 
      
       In response to the assertion of the dissent that these cases should be remitted to the Board for its reconsideration of the claims for accident death benefits, it suffices to note that if the Board were to deny the claims we would be obliged to vacate its determination as erroneous. In each case we conclude as a matter of law that there was an accident.
     