| Matter of Macri v DiNapoli |
| 2008 NY Slip Op 08591 [56 AD3d 936] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Santo Macri, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Stein, 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 applications for accidental and performance of duty disability retirement benefits.
Petitioner was first employed in 1984 as a police officer for the Town of Harrison PoliceDepartment in Westchester County. In 2004, he filed applications for accidental and performanceof duty disability retirement benefits alleging that he was permanently incapacitated fromperforming his employment duties due to work-related injuries he suffered to his back afterslipping and falling on ice in January 1994. Respondent initially disapproved the applications,prompting petitioner to request a hearing and redetermination. Following the hearing, theHearing Officer denied the applications, finding that petitioner had not proven that his permanentdisability was the natural and proximate result of his 1994 fall. Respondent thereafter adopted theHearing Officer's findings and this CPLR article 78 proceeding ensued.[*2]
Based upon our review of the record, we find thatsubstantial evidence supports respondent's denial of the applications. Specifically, the medicalexpert for the New York State and Local Retirement System, Leon Sultan, testified that hisexamination of petitioner and review of the medical records indicated that petitioner waspermanently disabled due to a degenerative disc disease that preexisted the 1994 fall. Sultanopined that the herniated discs which led to petitioner's permanent disability were caused by thenatural progression of the degenerative disease and were not traumatically produced. Althoughpetitioner presented evidence, in the form of medical reports from physicians who have treatedhim in the years following his fall, that causally relates his disability to that event, "[i]t is wellestablished that [respondent] is vested with the authority to weigh conflicting medical evidenceand to credit the opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27 AD3d 945, 946 [2006]; see Matter of Harko v New York StateComptroller, 46 AD3d 1185, 1187 [2007]). As Sultan presented an "articulated, rationaland fact-based medical opinion" (Matter of Harper v McCall, 277 AD2d 589, 590[2000]), we will not disturb respondent's determination.
Cardona, P.J., Spain, Carpinello and Malone Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.