| Matter of Mazzotte v DiNapoli |
| 2010 NY Slip Op 01408 [70 AD3d 1233] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul Mazzotte, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Garry, 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 whichdenied petitioner's application for performance of duty disability retirement benefits.
Petitioner, who was a correction officer for more than 20 years, applied for performance ofduty disability retirement benefits in 2001 after undergoing coronary artery bypass surgery. Healleged that he was permanently disabled by coronary artery disease caused by the stress of hisemployment responsibilities, which included dealing with inmate riots, threats and attacks, a"contract being placed on [his] life" by inmates, and administrative pressures. Petitioner wasfound to be permanently disabled, but his application was denied on the ground that his disabilitywas not sustained as a result of the performance of his duties. Following a hearing requested bypetitioner, the Hearing Officer determined that petitioner was totally disabled, but that hisdisability was congenital. Respondent accepted the Hearing Officer's determination and deniedpetitioner's application. Petitioner commenced this CPLR article 78 proceeding to annul thisdetermination, and the matter was transferred to this Court by Supreme Court.[*2]
As petitioner contends and respondent concedes, theHearing Officer's written decision contains significant factual errors. The decision incorrectlystates that petitioner had diabetes and high blood pressure, when there was no evidence that hehad either condition. The decision further indicates that an expert physician for the New YorkState and Local Employees' Retirement System testified regarding his 2001 examination, whenin fact the expert's written report was admitted into evidence without testimony. In view of theseerrors, we may not consider petitioner's contention that the Retirement System's evidence wasinsufficient to meet its burden to rebut the "heart presumption" (see Retirement andSocial Security Law § 507-b [c]; Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d1075, 1075 [2006]). Our review of respondent's determination is limited to the grounds onwhich it relied; when that basis is inadequate, we may not substitute other grounds (seeMatter of Montauk Improvement v Proccacino, 41 NY2d 913, 913-914 [1977]).Respondent's failure to set forth an adequate—or, as here, accurate—statement ofthe factual basis for its determination forecloses fair judicial review (see id.; Matter of Cantone v DiNapoli, 50AD3d 1307, 1307-1308 [2008]; Matter of Bierenbaum v Goord, 13 AD3d 945, 946 [2004]; seealso Matter of Lasher v McCall, 304 AD2d 1016 [2003]). Thus, "the appropriate remedy isto annul the determination and remit the matter to respondent to render a determination that issufficient to permit our review" (Matter of Johnson v McCall, 281 AD2d 730, 731[2001]).
We further agree that petitioner should have an opportunity to cross-examine the RetirementSystem's expert physician. Although the right of cross-examination is limited in administrativeproceedings (see Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]; Matter of Kosich v New York State Dept.of Health, 49 AD3d 980, 983 [2008], appeal dismissed 10 NY3d 950 [2008]),the Retirement System originally intended to offer the expert testimony and, on review, does notobject to petitioner's request.[FN*]We note with some concern that providing this opportunity will necessitate additional delay inthis already protracted matter (commenced in 2001). Accordingly, this testimony should berescheduled forthwith upon remittal.
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent for further proceedings notinconsistent with this Court's decision.[*3]
Footnote *: The Retirement Systemindicated at the March 2004 hearing that it intended to present the expert's testimony. Thehearing was adjourned for that purpose and the expert was scheduled to testify in October 2005.Upon the expert's failure to appear on that date, the Retirement System stated that it wouldreschedule his testimony, but never did so. In November 2005, petitioner moved to strike theexpert's report from the record and preclude his testimony. There was no response, and thedetermination later rendered apparently did not address this application.