| Matter of Mullins v New York State Comptroller |
| 2008 NY Slip Op 01897 [49 AD3d 951] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Edward Mullins, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Mercure, 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 disability retirement benefits.
Petitioner was employed as a police sergeant by the Town of Warwick, Orange County, from1992 until 2003. He filed for accidental disability and performance of duty disability retirementbenefits in November 2003, alleging that he was permanently disabled due to an injury to histhumb sustained while making an arrest. Following hearings, petitioner's applications weredenied, prompting this CPLR article 78 proceeding challenging respondent Comptroller'sdetermination.
We confirm. Respondents concede that petitioner's injuries were the result of an "accident"within the meaning of Retirement and Social Security Law § 363; the sole issue in thisproceeding is whether substantial evidence supports the determination that petitioner is notpermanently incapacitated from performing the duties of a police sergeant (see Matter of Beckley v New York State &Local Retirement Sys., 43 AD3d 1267, 1268 [2007]). John Mazella, a [*2]board-certified orthopedic surgeon who examined petitioner onbehalf of respondent New York State Retirement System, testified that although EMG nerveconduction studies were necessary to confirm which of two possible diagnoses applied topetitioner, safe and effective surgical procedures were available to correct either of the twoconditions. In addition, petitioner's medical records indicate that his treating physiciansrecommended surgery, which was not performed solely due to petitioner's apprehensiveness.
Inasmuch as Mazella's opinion was rational, articulate and fact-based, it constitutessubstantial evidence to support the Comptroller's determination that petitioner unreasonablyrefused to undergo a surgical procedure to resolve his disability and, thus, failed to establish thathe was permanently incapacitated (see Matter of Beckley v New York State & LocalRetirement Sys., 43 AD3d at 1268-1269; Matter of Dymond v Hevesi, 24 AD3d 938, 938-939 [2005];Matter of Mondello v Beekman, 78 AD2d 824, 824 [1980], affd 56 NY2d 513[1982]). Petitioner's assertion that Mazella's opinion should have been rejected because he is nota hand surgeon is meritless. "[T]he fact that a physician [is] not a specialist in a particular areagenerally goes to the weight to be given the expert testimony[,] not its admissibility," and theHearing Officer is vested with the authority to weigh the relevant medical evidence (Matter ofMarx v McCall, 306 AD2d 797, 799 [2003]; see Matter of Varriano v Hevesi, 40 AD3d 1357, 1359 [2007],lv denied 9 NY3d 815 [2007]). Petitioner's remaining argument has been considered andfound to be lacking in merit.
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.