| Matter of Lawless v DiNapoli |
| 2008 NY Slip Op 09335 [56 AD3d 1114] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert E. Lawless, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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 application for performance of duty disability retirement benefits.
Petitioner applied for performance of duty disability retirement benefits in February 2003alleging that he was permanently incapacitated as the result of a heart attack he sufferedapproximately six months earlier. The New York State and Local Employees' Retirement Systemdenied the application, finding that while petitioner indeed was permanently incapacitated fromthe performance of his duties, his disability was not sustained as a result of the discharge of hisduties as a correction officer. Petitioner sought a hearing and redetermination, at the conclusionof which the Hearing Officer upheld the denial, concluding that the proof submitted by theRetirement System was sufficient to rebut the statutory "heart presumption" contained inRetirement and Social Security Law § 507-b (c). Respondent made supplemental findingsbut otherwise accepted the Hearing Officer's conclusions, [*2]prompting petitioner to commence this proceeding pursuant toCPLR article 78 to challenge that determination.
Respondent does not dispute that petitioner successfully passed his preemployment physicalor that he is now permanently disabled from performing his duties as a correction officer due tohis heart attack and underlying coronary artery disease. Inasmuch as petitioner has elected to relyupon the statutory presumption contained in Retirement and Social Security Law § 507-b(c), the issue distills to whether the Retirement System rebutted this presumption with competentmedical evidence. Based upon our review of the record as a whole, including petitioner'spersonal and family medical history and the testimony of the Retirement System's examiningphysician, we find that the presumption was effectively rebutted and, accordingly, petitioner'sapplication for benefits was properly denied (see Matter of Tucker v McCall, 262 AD2d916, 917-918 [1999]; see also Matter ofBryant v Hevesi, 41 AD3d 930, 931 [2007]).
Petitioner testified that he suffered his heart attack while in his yard on the third or fourth dayof a scheduled vacation. Petitioner also acknowledged that he was diagnosed with hypertensionin the late 1980s and, at the time of his heart attack in August 2002, was taking medication forthat condition. Additionally, petitioner conceded on cross-examination that his father, whoapparently died from a stroke, had previously suffered a nonfatal heart attack. According to theboard-certified cardiologist who examined petitioner on behalf of the Retirement System,petitioner's identified risk factors, i.e., age, gender, hypertension and a family history of heartdisease, played a significant role in the development of petitioner's underlying coronary arterydisease. In his opinion, it was this disease, of longstanding duration, "wholly unrelated" topetitioner's employment as a correction officer, and not job-related stress, that set the stage forpetitioner's disabling condition. In our view, this testimony, coupled with petitioner's medicalrecords and the identified risk factors, was sufficient to rebut the statutory presumption (seeMatter of Bryant v Hevesi, 41 AD3d at 932-933).
Mercure, J.P., Rose, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.