| Matter of Morgan v Hevesi |
| 2007 NY Slip Op 09660 [46 AD3d 1007] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kevin P. Morgan, Petitioner, v Alan G. Hevesi, asComptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Mugglin, 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 denyingpetitioner's application for accidental disability retirement benefits.
Petitioner retired from his position as a police officer with the Town of Greenburgh,Westchester County, in February 1998. Approximately 19 months following his retirement, heapplied to respondent for accidental disability retirement benefits, claiming permanent incapacityas a result of injuries suffered in a 1980 motor vehicle accident. Following hearings, the HearingOfficer determined that the cervical spine injury suffered by petitioner in the 1980 motor vehicleaccident did not render him permanently incapacitated from performing his job responsibilitiesand that petitioner's claimed injury to his right hip, although rendering him permanentlyincapacitated, was not proximately caused by the 1980 accident. The Hearing Officer'srecommendation that petitioner's application for accidental disability retirement benefits bedenied was adopted by respondent, resulting in this CPLR article 78 proceeding.
Entitlement to accidental disability retirement benefits arises from proof that the [*2]applicant is permanently incapacitated for the performance of dutyas the result of an accident while in service (see Retirement and Social Security Law§ 363 [a] [1]; Matter of O'Halpinv New York State Comptroller, 12 AD3d 771, 772 [2004], lv denied 5 NY3d702 [2005]). In exercising the exclusive authority to determine all applications for retirementbenefits (see Matter of DiPofi v New York State & Local Police & Fire Retirement Sys.,273 AD2d 734, 734 [2000], lv denied 95 NY2d 765 [2000]; see also Retirementand Social Security Law § 374), respondent's authorized resolution of conflicting medicalevidence will be upheld if supported by substantial evidence (see Matter of O'Halpin v NewYork State Comptroller, 12 AD3d at 772; Matter of Fergus v Hevesi, 6 AD3d 922, 923 [2004]).
First, with respect to the cervical spine injury, a neurologist examined petitioner and hismedical records pertaining to the 1980 accident and found that this injury did not render himpermanently incapacitated from performing his job responsibilities as a police detective.Respondent's decision to credit this evidence over the contrary opinions contained in the reportsand records of petitioner's treating physicians is bolstered by petitioner's return to unrestrictedduty within nine months of the accident and his continuous service until his 1998 retirement.Under these circumstances, it is clear that respondent's determination on this issue is supportedby credible evidence and must be sustained (see Matter of Capparella v McCall, 7 AD3d 875, 876 [2004]).
Next, as to the right hip injury, respondent's board-certified orthopedic surgeon found nocausal connection between it and the 1980 accident as none of petitioner's medical recordsreports or documents any knee or hip injury until after a second automobile accident in 1997.Petitioner's own recollection, the testimony of the former town comptroller and letters from thepolice chief and the chiropractor who took over the practice of petitioner's treating chiropractorare not only insufficient to rebut the medical opinion of the independent examiner, but also areinadequate to meet petitioner's burden of proving all elements of his claim (see StateAdministrative Procedure Act § 306 [1]). As a consequence, the denial of petitioner'sapplication is supported by substantial evidence.
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.