| Matter of Mazzei v DiNapoli |
| 2011 NY Slip Op 09570 [90 AD3d 1458] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Robert V. Mazzei, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 which deniedpetitioner's applications for accidental and performance of duty disability retirement benefits.
Petitioner, a former police detective, was injured in December 1999 when he was pinnedagainst a utility pole after his parked patrol car, which he had exited, was struck by anothervehicle. He filed applications for accidental and performance of duty disability retirementbenefits, which were denied.[FN*] Thereafter, as petitioner's condition worsened, he filed two additional applications, one foraccidental disability retirement benefits and the second for performance of duty disabilityretirement benefits. Following the initial denial of these applications, a de novo hearing wasconducted before a Hearing Officer at which additional [*2]medical evidence regarding petitioner's condition was presented. Atthe end of the hearing, the Hearing Officer concluded that the applications were properly denied.On appeal, respondent also found that the applications were properly denied, albeit—inpart—for a different reason. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. Even with the additional medical proof adduced at the hearing, the recorddiscloses that there was conflicting medical evidence concerning whether petitioner's injurieswere causally related to his employment and rendered him permanently incapacitated fromperforming his duties. Since the resolution of conflicting medical opinions and the assessment ofcredibility are matters within the province of respondent (see Matter of Kaufman v Murray, 85 AD3d 1534, 1535 [2011]; Matter of Velazquez v New York State &Local Retirement Sys., 17 AD3d 833, 835 [2005]), we conclude that substantialevidence supports respondent's determination. Therefore, we will not disturb it despite theexistence of proof that might support a different conclusion.
Mercure, A.P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: The denial of one of hisapplications for accidental disability retirement benefits was later upheld by this Court (Matter of Mazzei v Hevesi, 45 AD3d1103 [2007]).