| Matter of Mazzei v Hevesi |
| 2007 NY Slip Op 08828 [45 AD3d 1103] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of Robert V. Mazzei, Petitioner, v Alan G. Hevesi, asState Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
On December 11, 1999 petitioner, a former police detective, was examining a utility pole tosee if it had been damaged at the scene of a motor vehicle accident when his own police car wasstruck by another vehicle, causing it to slam into the car that had been involved in the initialaccident, which then pinned petitioner against the utility pole. Petitioner did not return to workand subsequently applied for accidental disability retirement benefits. The application wasinitially disapproved on the basis that petitioner was not permanently incapacitated for theperformance of his duties. Petitioner requested a hearing and redetermination, at the conclusionof which the Hearing Officer found that the incident was an accident within the definition of theRetirement and Social Security Law (see e.g. Retirement and Social Security Law§ 363) and that petitioner was in fact permanently incapacitated for the performance of hisduties. However, the Hearing Officer also found that petitioner had failed to prove that theaccident was the competent [*2]producing cause of his disabilityand denied the application on that basis. Respondent upheld the Hearing Officer's determinationand this CPLR article 78 proceeding ensued.
We confirm. The medical evidence as to the cause of petitioner's disability was conflictingand respondent was free to weigh the evidence and credit one expert's opinion over that ofanother (see Matter of Longendyke v Regan, 195 AD2d 695, 696 [1993]). Petitionerrelies upon the expert evidence offered on his behalf, which indicated that the injuries sustainedin the accident exacerbated preexisting conditions that had been asymptomatic prior thereto andthat his current permanent conditions were indirectly causally related to the injuries sustained inthe accident. However, the orthopedist who examined petitioner on behalf the New York StateEmployees' Retirement System determined that neither the knee replacement nor the backsurgery undergone by petitioner after the accident were attributable to the accident. Theorthopedist also testified that while these physical problems resulted in petitioner beingpermanently incapacitated, they were not worsened or exacerbated by the accident. In reachingthese conclusions, the orthopedist relied upon, among other things, medical records indicatingthat petitioner never complained of lower back pain until more than two years after the accidentand that his left knee did not sustain a traumatic injury at the time of the accident.
Contrary to petitioner's suggestion, the record reveals that the orthopedist did take intoaccount the possibility of preexisting conditions being aggravated by the accident (cf. Matterof Sanchez v New York State & Local Police & Fire Retirement Sys., 208 AD2d 1027, 1028[1994]), but specifically discounted such a result based on the medical records before her. Giventhese facts, we conclude that there was substantial evidence to support respondent's conclusionthat petitioner failed to sustain his burden of establishing that his disabling conditions werecaused by the accident (see Matter ofConkling v Hevesi, 42 AD3d 630, 632 [2007]; Matter of Torella v New York State& Local Retirement Sys., 236 AD2d 684, 685 [1997], lv denied 89 NY2d 816[1997]). Accordingly, the determination must be upheld.
Petitioner's remaining contentions have been considered and rejected as unpersuasive.
Crew III, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.