| Matter of Stimmer v DiNapoli |
| 2012 NY Slip Op 06352 [98 AD3d 1216] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of Ludwig J. Stimmer, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Garry, 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 application for performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefitsbased upon work-related injuries he suffered on August 24, 1991, March 24, 2003 and March 4,2008. The application was initially denied and petitioner requested a hearing andredetermination. At the subsequent hearing, petitioner withdrew his claim regarding the 2003injuries and the Hearing Officer upheld the denial of the application, finding that petitioner hadnot established that the 2008 injuries were the result of an act of an inmate and that the 1991injuries were not shown to be causally related to petitioner's disability. Respondent adopted the[*2]findings and conclusions of the Hearing Officer, promptingthis CPLR article 78 proceeding.[FN*]
We confirm. As the applicant, petitioner bore the burden of demonstrating that he isincapacitated from performing his work-related duties due to injuries suffered as the result of anact of an inmate (see Retirement and Social Security Law § 507-b [a]; Matter of Sedlak v DiNapoli, 84 AD3d1675, 1677 [2011]). To that end, petitioner testified that, in March 2008, he was escortingtwo inmates up a flight of stairs when the lights went out in the stairwell and one of the inmatesintentionally stuck her leg out and tripped him, causing injuries. In contrast, however, petitionerdid not include any reference to being tripped by an inmate in either the incident report heprepared the day of his fall or his application for benefits. Petitioner testified that he failed toinclude such information in his incident report due to being rushed to complete it prior to beingsent for medical attention.
It is well settled that inconsistencies between a petitioner's sworn testimony and writtendocuments present a credibility issue for the factfinder to resolve (see Matter of Koziuk v New York StateComptroller, 78 AD3d 1458, 1460 [2010]; Matter of Allesandro v DiNapoli, 68 AD3d 1592, 1594 [2009],lv denied 14 NY3d 705 [2010]). Here, the Hearing Officer credited the information in theincident report and the application for benefits over petitioner's testimony. Contrary topetitioner's argument, the Hearing Officer expressly stated that the inmate's report was not reliedupon in reaching this determination. According due deference to that credibility determination,we are satisfied that respondent's determination is supported by substantial evidence and declineto disturb it (see Matter of Sedlak v DiNapoli, 84 AD3d at 1678; Matter of Esposito v Hevesi, 30 AD3d667, 668 [2006]).
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Petitioner does not address thefinding regarding the 1991 injury in his brief to this Court, and any arguments regarding thatfinding are thus deemed abandoned (seeMatter of Kempkes v DiNapoli, 81 AD3d 1071, 1071 n [2011]; Matter of Velazquez v New York State &Local Retirement Sys., 17 AD3d 833, 834 n [2005]).