| Matter of Byrne v DiNapoli |
| 2011 NY Slip Op 05615 [85 AD3d 1530] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Michael Byrne, Petitioner, v Thomas P.DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
Spain, 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 applications for accidental and performance of duty disabilityretirement benefits.
Petitioner, a firefighter, took regular service retirement in 2005 and was thereafter diagnosedwith prostate cancer. He underwent surgery to remove the cancer and required no furthertreatment. Petitioner then applied for accidental and performance of duty disability retirementbenefits alleging that he had developed the cancer prior to his retirement (see Retirementand Social Security Law § 363 [a] [2]; § 363-c [b] [2]). The applications weredenied. Following a hearing, the Hearing Officer determined that petitioner had failed toestablish that he was permanently disabled from the performance of his duties as a firefighter anddenied the applications. Respondent Comptroller made additional findings of fact and upheld thedenial of petitioner's applications. This CPLR article 78 proceeding ensued.
In connection with any application for accidental or performance of duty disability [*2]retirement benefits, the applicant bears the burden of proving thathe or she is permanently incapacitated from the performance of his or her job duties (see Matter of Meluch v New York State &Local Police & Fire Retirement Sys., 80 AD3d 976, 976 [2011]; Matter of Eddie v DiNapoli, 72 AD3d1326, 1327 [2010]).[FN*]While petitioner testified that he did not believe he could perform many of his duties as afirefighter due to fatigue and frequent urination, he failed to present any medical evidencesupporting permanent incapacity at the hearing.
On the other hand, the record contains the report of a medical expert who examinedpetitioner and reviewed his medical records on behalf of respondent New York State and LocalRetirement System and concluded that petitioner was doing well after his surgery and was notdisabled. The record also includes a statement of petitioner's treating physician issued shortlyafter his surgery indicating that petitioner was not disabled and that his prognosis was good.Inasmuch as the Comptroller's determination is supported by articulated, rational and fact-basedmedical evidence, we will not disturb it (see Matter of Meluch v New York State & LocalPolice & Fire Retirement Sys., 80 AD3d at 977; Matter of Eddie v DiNapoli, 72AD3d at 1327; Matter of Kosilla vHevesi, 25 AD3d 870, 871 [2006]).
Peters, J.P., Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: Notably, the presumption setforth in Retirement and Social Security Law § 363-d, on which petitioner relies, is notrelevant in this case as petitioner failed to meet his threshold burden of establishing that he waspermanently incapacitated.