| Matter of Feldon v New York State Comptroller |
| 2010 NY Slip Op 00350 [69 AD3d 1092] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael A. Feldon, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Rose, 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 Comptrollerwhich denied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer employed by Nassau County, suffered from arterioscleroticheart disease which required coronary artery bypass surgery. His application for performance ofduty disability retirement benefits was denied on the ground that his disability did not arise fromhis work duties. Petitioner requested a hearing and redetermination, following which a HearingOfficer upheld the denial. In relevant part, respondent Comptroller accepted the HearingOfficer's findings and conclusions, and petitioner thereafter commenced this CPLR article 78proceeding.
We confirm. Initially, petitioner contends that the Comptroller improperly relied upon thewritten report of a cardiologist, Rajoo Patel, retained by respondent New York State and LocalRetirement System and who did not testify. Petitioner not only failed to object to the admissionof that [*2]report, but affirmatively moved it into evidence overthe Retirement System's objection and separately consented to its admission after becomingaware that Patel would not testify. As a result, petitioner waived any objection to the report'sadmission or consideration (see Matter of Fratello [M & R ConsumerGoods—Commissioner of Labor], 271 AD2d 880, 880 [2000]; Matter of Johnsenv New York State Police & Fire Retirement Sys., 246 AD2d 784, 784-785 [1998], lvdenied 91 NY2d 814 [1998]; cf. Matter of Motta v New York State Policemen's &Firemen's Retirement Sys., 68 AD2d 994, 995 [1979]).
Turning to the merits, it is undisputed that petitioner is disabled from performing his dutiesas a correction officer. Petitioner relies upon the statutory presumption contained in Retirementand Social Security Law § 607-d to establish that his disability arose as a result of his jobduties.[FN*]The question, thus, is whether the Retirement System rebutted that presumption with competentmedical evidence (see Matter ofLawless v DiNapoli, 56 AD3d 1114, 1115 [2008]; Matter of Bryant v Hevesi, 41 AD3d 930, 931 [2007]). Here, Patelunequivocally opined that petitioner's "cardiac condition is not related to his occupation" andthat his weight, age and history of smoking, hypertension and high cholesterol were among therisk factors responsible. Indeed, petitioner's medical records disclose the existence of a numberof those factors, and his own cardiologist admitted that they were applicable and relevant. Thisevidence was sufficient to rebut the statutory presumption and, as a result, the Comptrollerappropriately denied petitioner's application (see Matter of Bryant v Hevesi, 41 AD3d at932; Matter of Krupinski v McCall, 302 AD2d 676, 677 [2003]). Finally, petitioner'sfailure to raise any objection at the hearing to Patel's qualifications renders that issueunpreserved for our review (see Matterof Adam v County of Onondaga, 26 AD3d 618, 619 [2006]).
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: As required by that statute, aphysical examination conducted upon petitioner when he began working as a correction officerdisclosed no heart problems.