| Matter of Rossi v New York State Comptroller |
| 2008 NY Slip Op 08071 [55 AD3d 1125] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of Arthur J. Rossi, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent Comptroller whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a Port Authority police officer, filed applications for accidental and performance of dutydisability retirement benefits following a September 2000 incident wherein petitioner was struck on thehead by a metal beam that fell from a collapsed scaffold. Following disapproval of his applications,petitioner sought a hearing and redetermination, at the conclusion of which a Hearing Officer found thatpetitioner failed to establish that he was permanently incapacitated from the performance of his duties.Respondent Comptroller accepted those findings, prompting petitioner to commence this proceedingpursuant to CPLR article 78 to challenge that determination.[FN1][*2]
As the applicant, petitioner bore the burden of establishing thathe is permanently incapacitated from the performance of his duties as a Port Authority police officer (see Matter of Mainzer v DiNapoli, 52AD3d 1167 [2008]).[FN2]In this regard, petitioner testified at length regarding his prior injuries, his current symptoms and theduties required of him as a Port Authority police officer. Petitioner also offered the testimony of MitchellGoldstein, the board-certified orthopedic surgeon who evaluated petitioner in February 2004.Goldstein diagnosed petitioner with cervical disk herniation and cervical radiculopathy, together withnerve root impingement. Specifically, Goldstein noted that an MRI conducted approximately twomonths after petitioner's accident showed an acute injury to the neck and accompanying edema, andthat an EMG study undertaken approximately six weeks after petitioner's accident revealed irritationand damage to the C-7 nerve root. Similarly, Goldstein testified that a myelogram conducted in April2001, among other things, showed a moderate to large paracentral disk herniation at level C-5/C-6with a significant mass effect on the right nerve root, which could be expected to produce painconsistent with petitioner's symptoms. Based upon his review of these test results, petitioner's jobdescription and duties, and his physical examination of petitioner, Goldstein opined that petitioner waspermanently incapacitated from the performance of his duties as a Port Authority police officer and thatthe injuries petitioner sustained were causally related to the September 2000 accident.
Respondent New York State and Local Retirement System offered the testimony of StevenSchwartz, a board-certified neurologist who evaluated petitioner in September 2002. After examiningpetitioner and reviewing the foregoing diagnostic studies and petitioner's job description, Schwartzopined that petitioner was neurologically intact and was not permanently incapacitated from theperformance of his duties from a neurological perspective. Schwartz candidly conceded, however, thathe did not conduct an orthopedic assessment of petitioner, that he was not qualified to do so and thathe imagined one could be orthopedically disabled but neurologically intact. Notably, Schwartz did notdispute the diagnosis of disk herniation, nor did he deny that petitioner might have a nerve root irritationat level C-7, and he acknowledged that petitioner's history and symptoms were consistent with adiagnosis of radiculopathy.
While respondents correctly note that the Comptroller is vested with the exclusive authority toweigh and evaluate conflicting medical testimony and to credit the opinion of one expert over that ofanother (see Matter of Varriano vHevesi, 40 AD3d 1357, 1359 [2007], lv denied 9 NY3d 815 [2007]), "the properexercise of that discretionary authority 'presupposes the existence of legally sufficient conflictingevidence' " (Matter of Burnham v McCall, 265 AD2d 763, 764 [1999] [citation omitted]). Weagree with petitioner that no actual conflict is present here. Schwartz indeed opined that petitionerevidenced no neurological deficits that would render him permanently incapacitated from theperformance of his duties, but Goldstein's testimony as to petitioner's demonstrated orthopedic disabilityand its causal relationship to the September 2000 accident was unrefuted. Under such circumstances,we must conclude that the Comptroller's determination denying petitioner's application for accidentaldisability retirement [*3]benefits is not supported by substantialevidence in the record as a whole (seegenerally Matter of Chapin v Hevesi, 6 AD3d 918, 920 [2004]; Matter of Wygand vRegan, 135 AD2d 1060, 1061 [1987]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and matter remitted to respondent Comptroller for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Although the Comptroller deniedboth of petitioner's applications, only the denial of petitioner's application for accidental disabilityretirement benefits is challenged in this proceeding.
Footnote 2: At the start of the hearing,respondent New York State and Local Retirement System conceded that the September 2000 incidentconstituted an "accident" and that such accident occurred while petitioner was in service as a policeofficer.