| Matter of Brunner v Bertoni |
| 2012 NY Slip Op 00167 [91 AD3d 1100] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Paul Brunner, Appellant, v John Bertoni,as Mayor of the Village of Endicott, et al., Respondents. |
—[*1] Coughlin & Gerhardt, L.L.P., Endicott (Paul J. Sweeney of counsel), forrespondents.
Mercure, A.P.J. Appeal from a judgment of the Supreme Court (Lebous, J.), entered October29, 2010 in Broome County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Mayor of the Village of Endicottdenying petitioner's request for General Municipal Law § 207-c benefits.
Petitioner, a police officer, sustained serious injuries in a 2008 off-duty motorcycle accident,including a dislocated left thumb joint that required surgery to correct. Upon his return to workwith the Village of Endicott Police Department, he undertook mandatory firearms training thatinvolved repeatedly firing his sidearm with his left hand. He could not complete the training dueto pain in his left thumb and, as a result, stopped working for eight months until learning how toshoot with his right hand.
Petitioner applied for benefits pursuant to General Municipal Law § 207-c, and thepolice chief denied his application. A Hearing Officer thereafter recommended that the benefitsbe granted. Respondent John Bertoni, the Mayor of the Village of Endicott, disagreed and deniedthe application, prompting this CPLR article 78 proceeding. Supreme Court dismissed the [*2]petition, and petitioner appeals.[FN*]
We affirm. General Municipal Law § 207-c provides police officers such as petitioner"with benefits, including full wages, where they are injured 'in the performance of [their] duties' "(Matter of Martino v County ofAlbany, 47 AD3d 1052, 1052 [2008], quoting General Municipal Law § 207-c[1]). To demonstrate entitlement to those benefits, petitioner must "prove a direct causalrelationship between job duties and the resulting illness or injury" (Matter of White v Countyof Cortland, 97 NY2d 336, 340 [2002]; accord Matter of Theroux v Reilly, 1 NY3d 232, 244 [2003]). Inour view, while "[p]reexisting non-work-related conditions [would] not bar recovery. . . [if petitioner's] job duties were a direct cause of the disability," substantialevidence in the record amply supports Bertoni's finding that they were not a direct cause(Matter of White v County of Cortland, 97 NY2d at 340).
In that regard, orthopedic surgeon Charles Totero conducted an independent medicalexamination of petitioner and opined that he was not injured during the firearms training.Although discharging his firearm caused petitioner discomfort, the pain stopped when he ceasedfire, and Totero indicated that the pain was caused by arthritis stemming solely from the priorthumb injury (see e.g. Matter ofSteinmann v Hevesi, 18 AD3d 1011, 1012 [2005], lv denied 5 NY3d 710[2005]). Bertoni was free to credit Totero's opinion and, inasmuch as "mere fortuity of timingdoes not entitle an employee to benefits under General Municipal Law § 207-c" in theabsence of a causal connection between petitioner's duties and the disability, the application wasproperly denied (Matter of Greenewald v County of Schenectady, 85 NY2d 527, 534[1995]; see Matter of Ridge Rd. FireDist. v Schiano, 16 NY3d 494, 499 [2011]; cf. Matter of Schmidt v Putnam County Off. of Sheriff, 49 AD3d761 [2008]).
Petitioner's remaining arguments have been considered and found to be without merit.
Rose, Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.[*3]
Footnote *: Although petitioner incorrectlyinvoked the arbitrary and capricious standard of review before Supreme Court, the petition raisedan issue of substantial evidence and the matter should have been transferred to this Courtpursuant to CPLR 7804 (g); on this appeal, we treat the matter as having been properlytransferred and decide the substantial evidence issue de novo (see Matter of Thibodeau v Northeastern Clinton Cent. School Bd. ofEduc., 39 AD3d 940, 941 [2007]; Matter of Barnwell v Goord, 268 AD2d 725,725 [2000], lv denied 95 NY2d 751 [2000]).