| Matter of Fochi v New York State Comptroller |
| 2010 NY Slip Op 08673 [78 AD3d 1460] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of John L. Fochi, Petitioner, v New York State Comptrolleret al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondents.
Malone Jr., 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 performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefits inJanuary 2007 alleging that he was permanently disabled due to neck and back injuries that he sustainedsix years earlier while attempting to restrain an inmate. After his application was initially disapproved,petitioner requested a redetermination and hearings were held. Thereafter, a Hearing Officer ruled thatpetitioner failed to satisfy his burden of establishing that his disability[FN*]was caused by the 2001 incident (see Retirement and Social Security Law § 607-c) anddenied his application. Respondent Comptroller accepted the Hearing Officer's findings of fact andconclusions of law, prompting this CPLR article 78 proceeding.[*2]
We confirm. Initially, petitioner asserts that the Comptrollerimproperly relied upon the written reports of Leon Sultan, an orthopedic surgeon who examinedpetitioner at the request of respondent New York State and Local Employees' Retirement System butdid not testify at the hearings. However, in addition to failing to object to the admission of Sultan'sreports at the initial hearing, petitioner's counsel specifically inquired—at a subsequenthearing—whether Sultan would be called to testify. Upon being informed that Sultan would not,petitioner did not object or request that he be allowed to cross-examine the physician. Accordingly,petitioner has no basis upon which to now challenge the admissibility of Sultan's reports, Sultan'scredentials or his purported inability to subject Sultan to cross-examination (see Matter of Feldon v New York StateComptroller, 69 AD3d 1092, 1092 [2010], lv denied 15 NY3d 702 [2010];Matter of Fratello [M & R Consumer Goods—Commissioner of Labor], 271 AD2d880, 880 [2000]; cf. Matter of Mazzotte vDiNapoli, 70 AD3d 1233, 1234 n [2010]).
Turning to the merits, it is axiomatic that the Comptroller "possesses the authority to resolveconflicts in the medical evidence and to credit one expert's opinion over that of another, so long as thecredited expert articulates a rational and fact-based opinion founded upon a physical examination andreview of the pertinent medical records" (Matter of Freund v Hevesi, 34 AD3d 950, 950 [2006]; see Matter of Neely v DiNapoli, 71 AD3d1367, 1369 [2010]). Here, Sultan opined that the changes he observed in the lumbar, thoracic andcervical regions of petitioner's spine were caused by age-related degeneration rather than as the resultof the trauma he experienced in 2001. In doing so, Sultan provided a comprehensive summary of thephysical examination he performed on petitioner, while also noting that petitioner returned to full dutyfive days after the incident and worked in that capacity—without restriction—in excess ofthe ensuing four years. Accordingly, the Comptroller's decision is supported by substantial evidenceand we perceive no basis upon which to disturb it, even though the record contains evidence that mightsupport a different result (see Matter of Latav Hevesi, 39 AD3d 1131, 1132-1133 [2007]; Matter of Wawrzynek v New York State& Local Retirement Sys., 291 AD2d 627, 628 [2002]).
Finally, notwithstanding petitioner's contentions otherwise, the Comptroller's determination may befounded on hearsay evidence alone (see Matter of Johnsen v New York State Police & FireRetirement Sys., 246 AD2d 784, 786 [1998], lv denied 91 NY2d 814 [1998];Matter of Hamlet v McCall, 222 AD2d 883, 883 [1995]), and we are unpersuaded that theHearing Officer's decision included a factual mistake sufficient to warrant reversal.
Mercure, J.P., Peters, Rose and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Respondent New York State andLocal Employees' Retirement System conceded that petitioner was permanently incapacitated from theperformance of his duties.