| Matter of Zuckerberg v New York State Comptroller |
| 2007 NY Slip Op 09845 [46 AD3d 1057] |
| December 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Paul Zuckerberg, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
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 Comptrollerwhich denied petitioner's applications for accidental disability and performance of dutyretirement benefits.
Petitioner, a police lieutenant employed by the Port Authority of New York and New Jersey,was injured on April 12, 2004 while working at John F. Kennedy International Airport when hefell while descending a stairway. Subsequently, petitioner filed applications for accidentaldisability and performance of duty retirement benefits. Following a hearing, the Hearing Officerrecommended that the claims be denied on grounds that petitioner did not suffer an accident andthat petitioner was not permanently incapacitated for the performance of duty. RespondentComptroller accepted the Hearing Officer's recommendations and denied the claims. This CPLRarticle 78 proceeding ensued.
This Court's role in reviewing the Comptroller's determinations made after a hearing islimited to ascertaining whether the determination is supported by substantial evidence (see Matter of Varriano v Hevesi, 40AD3d 1357, 1359 [2007]); that is, whether the Comptroller's [*2]factual conclusions have a rational basis in the record (see Matter of Esposito v Hevesi, 30AD3d 667, 667 [2006]; Matter ofKosilla v Hevesi, 25 AD3d 870, 871 [2006]). If it does, we confirm the determination.
First, addressing the issue of whether petitioner suffered an accident as that term is employedin Retirement and Social Security Law § 363, we conclude that the record containssubstantial evidence to support the Comptroller's determination. Because the record containsconflicting evidence regarding the cause of petitioner's fall, the Comptroller exercised hisexclusive authority to evaluate credibility (see Matter of McCabe v Hevesi, 38 AD3d 1035, 1036 [2007]; Matter of Zydor v New York State & LocalEmployees' Retirement Sys., 24 AD3d 924, 925 [2005]).
In light of petitioner's experience with the area, his inconsistent statements concerning thecause of his fall and when he discovered the alleged defect, and the contemporaneous accidentreport filed by a witness to the fall which does not support petitioner's claim of an improperlyinstalled stair "saddle," we conclude that petitioner did not meet his burden of showing that hisfall was caused by an improperly installed saddle (see Matter of Sinclair v New York State & Local Retirement Sys., 42AD3d 595, 596 [2007]; Matter ofPryor v Hevesi, 14 AD3d 776, 776 [2005]), rather than due to a misstep which does notmerit a disability determination (see Matter of Santorsola v McCall, 302 AD2d 727, 728[2003]; Matter of Bates v New York State Policemen's & Firemen's Retirement Sys., 124AD2d 276, 277 [1986]). We, therefore, conclude that the Comptroller's determination thatpetitioner's fall occurred because of a misstep, rather than an accident, finds ample support in therecord.
Second, we conclude that the Comptroller's determination that petitioner was notpermanently incapacitated for the performance of duty is supported by substantial evidence. Therecord contains conflicting medical evidence concerning the limitations that petitioner nowexperiences as a result of the injury sustained in the fall. Resolution of these conflicts in expertmedical testimony is within the exclusive authority of the Comptroller and his determination inthis regard will not be disturbed unless it lacks a rational basis in the record. Here, theComptroller chose to credit the testimony of an independent medical examiner who, on behalf ofrespondent New York State and Local Employees' Retirement System, examined petitioner andpetitioner's medical records and concluded that petitioner was not disabled or functionally limitedand could perform his required duties. Contrary to petitioner's argument, the brevity of theindependent medical examination does not require that more weight be given to the testimony ofpetitioner's expert medical witness (seeMatter of Scheuring v New York State Comptroller, 32 AD3d 1127, 1128 [2006]; Matter of Rolandelli v Hevesi, 27AD3d 945, 946 [2006]). Clearly, the conclusions reached by the Retirement System'smedical expert were rational and based upon fact (see Matter of Schine v Hevesi, 40 AD3d 1362, 1363-1364 [2007]).
Finally, the differing determinations made by the Workers' Compensation Board and theSocial Security Administration with respect to petitioner's present disability are not binding uponthe Comptroller (see Matter of Croshier v Levitt, 5 NY2d 259, 264-265 [1959]; Matter of Hall v McCall, 2 AD3d1026, 1027 [2003]).
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.