| Matter of Weeks v New York State Comptroller |
| 2009 NY Slip Op 09361 [68 AD3d 1427] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of John M. Weeks, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's applications for ordinary disability retirement benefits,accidental disability retirement benefits and performance of duty disability retirement benefits.
Petitioner began working as a police officer for the Suffolk County Police Department in1989. Approximately 10 years later, his coworkers became aware that he had been involved in ahomosexual relationship. From that time until October 2002, when he ceased working, petitionerwas regularly subjected to a pattern of sexual harassment, homophobic slurs and death threats.Asserting that he sustained disabling psychological injuries as a result, petitioner subsequentlysubmitted applications for ordinary disability retirement benefits, performance of duty disabilityretirement benefits and accidental disability retirement benefits. After his applications weredisapproved, he requested a redetermination and hearings were held. Following those hearings, aHearing Officer determined, among other things, that petitioner was not permanentlyincapacitated from the performance of his duties and denied his applications. RespondentComptroller adopted the findings and conclusions of the Hearing Officer, prompting this CPLRarticle 78 proceeding.[*2]
We note initially that petitioner's civil rightsclaims[FN*]are not presently before this Court; rather, our review is limited to whether substantial evidencesupports the Comptroller's determination that petitioner is not "physically or mentallyincapacitated for the performance of duty" (Retirement and Social Security Law § 362[aa]; § 363-c [a]; see Retirement and Social Security Law § 363 [a] [1];Matter of Stern v DiNapoli, 57 AD3d 1076, 1077-1078 [2008]). As an applicant fordisability retirement benefits, petitioner bore the burden of establishing that he is permanentlyincapacitated from performing his duties as a police officer (see Matter of Rossi v New YorkState Comptroller, 55 AD3d 1125, 1125-1126 [2008]). To that end, he offered the testimonyof Barry Butner, a licensed psychologist who began treating petitioner in 2003. Butner testifiedthat petitioner suffers from chronic posttraumatic stress disorder and is "unfit for duty. . . in Suffolk County law enforcement in any capacity." He also opined, however,that petitioner "is a very capable man" whose inability to perform the duties of a police officerwas strictly the result of the environment in which he was forced to work. Notably, MarcGrusensky, a board-certified psychiatrist who testified on behalf of respondent New York Stateand Local Employees' Retirement System, shared the latter opinion. Indeed, Grusenskyconcluded that petitioner was not permanently incapacitated from working as a police officer andthat, provided the behavior of his coworkers was addressed and rectified, petitioner could returnto the Suffolk County Police Department.
In short, both doctors agreed that petitioner was fully capable of working as a police officerin the abstract; they parted ways, however, on whether he was permanently disabled fromreturning to his position with the Suffolk County Police Department. Thus confronted withconflicting medical opinions, it was well within the discretion of the Comptroller to credit thetestimony of one expert over that of another (see Matter of Doran v New York State & LocalPolice & Fire Retirement Sys., 56 AD3d 922, 922-923 [2008]). Accordingly, inasmuch asGrusensky's medical opinion was rational and fact-based, the Comptroller's determination issupported by substantial evidence and we decline to disturb it (see id. at 923; Matterof Greenway v New York State & Local Employees' Retirement Sys., 274 AD2d 662, 663[2000], lv dismissed 95 NY2d 917 [2000]). Petitioner's remaining assertions, includingthat the incident relied upon as the basis for his entitlement to accidental disability retirementbenefits constituted an accident within the meaning of the Retirement and Social Security Law,are either without merit or have been rendered academic by our decision (see Matter ofMatthews v DiNapoli, 58 AD3d 1049, 1050 [2009]; Matter of De Filippo v Hevesi,32 AD3d 652, 653 [2006]).
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner has successfullysought relief pursuant to 42 USC § 1983 for civil rights violations in the Eastern Districtof New York (Weeks v Suffolk County Police, US Dist Ct, ED NY, 03 Civ 4294,Wexler, J., 2005). We stress that, while reprehensible, the wrongful conduct of other departmentpersonnel is beyond the scope of this proceeding, and those individuals are not parties to it.