Appellate Division of the Supreme Court of New York, 1995

Kopec v. Kelly

Kopec v. Kelly
Appellate Division of the Supreme Court of New York · Decided November 28, 1995
221 A.D.2d 252; 634 N.Y.S.2d 65; 1995 N.Y. App. Div. LEXIS 12143
Kopec v. Kelly

Opinion of the Court

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about January 25, 1994, which, in a proceeding pursuant to CPLR article 78 seeking to annul respondents’ determination denying petitioner’s application for accidental disability retirement benefits, denied the application, unanimously affirmed, without costs.

Petitioner was shot by a fellow police officer, with whom he was romantically involved, while visiting her in her home and *253off-duty, and claims that he was attempting to disarm her. While petitioner’s off-duty status does not necessarily preclude a line-of-duty finding, it is also true that petitioner’s attempt to disarm his assailant does not, as the IAS Court aptly put it, necessarily "transform a personal drama in which he was a principal player into a police action undertaken in the line of duty”. Petitioner’s off-duty status, his personal relationship with his assailant, the occurrence of the incident in a private residence, and the absence of any threat to the public at large combine to provide a rational basis for respondents’ determination that petitioner was not in "city-service” within the meaning of Administrative Code of the City of New York § 13-252. Concur—Murphy, P. J., Sullivan, Ross, Williams and Tom, JJ.

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