| Matter of Kossifos v DiNapoli |
| 2012 NY Slip Op 00891 [92 AD3d 1073] |
| February 9, 2012 |
| Appellate Division, Third Department |
| In the Matter of John N. Kossifos, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Peters, J.P. 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 application for performance of duty disability retirement benefits.
Petitioner, a correction officer, injured his right knee while subduing an inmate in August2003. In 2007, he applied for performance of duty disability retirement benefits, alleging that hewas permanently incapacitated from performing his job duties as a result of the 2003 injury. Theapplication was initially denied and petitioner sought a hearing and a redetermination. Followinga hearing, the Hearing Officer denied the application, finding that, although petitioner waspermanently disabled from performing his job duties, the disability was not the natural andproximate result of the performance of those duties. Respondent adopted the Hearing Officer'sfindings and this CPLR article 78 proceeding ensued.
We confirm. It is uncontroverted that petitioner is permanently disabled from performing theduties of a correction officer. Accordingly, in order to be entitled to performance of dutydisability retirement benefits, petitioner must demonstrate that his disablement was "the [*2]natural and proximate result of an injury, sustained in theperformance or discharge of his . . . duties by, or as the natural and proximate resultof any act of any inmate" (Retirement and Social Security Law § 607-c [a]). To that end,petitioner submitted the medical report of Win Chang, a treating physician, who opined thatpetitioner suffers from "severe traumatic endstage osteoarthritis" related to his work injury.Petitioner also relies on two medical reports, based upon independent medical examinations,finding that he was disabled due to degenerative osteoarthritis that was aggravated by the August2003 incident and that his symptoms were causally related to both the incident and hispreexisting arthritis. In contrast, Eric Zitzmann, a physician who examined petitioner on behalfof the New York State and Local Retirement System, opined that the August 2003 incident onlycaused a temporary aggravation, and that "the competent and permanent cause of his disability isthe severe bilateral knee osteoarthritis aggravated by his marked increase in weight."[FN*]
"Where, as here, there is conflicting medical evidence, respondent is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert overanother" (Matter of Gatewood vDiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]; accord Matter of Wilkinson vDiNapoli, 86 AD3d 851, 853 [2011]). Here, Zitzmann presented a rational andfact-based opinion, based upon his examination of petitioner and a review of the pertinentmedical records, that petitioner's disability was caused by the progression of a degenerativearthritic condition which was unrelated to his employment. Accordingly, respondent'sdetermination is supported by substantial evidence and it will not be disturbed, despite evidencein the record supporting a contrary result (see Matter of Kaufman v Murray, 85 AD3d 1534, 1535 [2011]; Matter of Fochi v New York StateComptroller, 78 AD3d 1460, 1461-1462 [2010], lv denied 16 NY3d 707[2011]).
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner was 5 feet, 10 inchesand weighed in excess of 300 pounds.