| Matter of Kennedy v New York State & Local Police & Fire RetirementSys. |
| 2008 NY Slip Op 09511 [57 AD3d 1050] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Timothy Kennedy, Petitioner, v New York State andLocal Police and Fire Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of the Comptroller which denied petitioner'sapplications for performance of duty and ordinary disability retirement benefits.
Petitioner worked as a police detective for the Waterfront Commission of the New York Harborfor 12 years. In 2000, he suffered from various heart, gastrointestinal and psychological problems thatcaused him to stop working. Soon thereafter, he filed applications for ordinary disability retirementbenefits and performance of duty disability retirement benefits. After his applications were disapproved,petitioner requested a hearing. Following the hearing, a Hearing Officer concluded that claimant was notentitled to either type of benefits because he was not permanently incapacitated from the performanceof his duties. This determination was adopted by the Comptroller, resulting in this CPLR article 78proceeding.
We confirm. Initially, we note that "[t]o qualify for the requested disability benefits, it wasincumbent upon petitioner to establish that he was permanently incapacitated from performing his dutiesas a police officer" (Matter of Lynn v Officeof Comptroller of State of N.Y., 16 AD3d 935, 936 [2005]). In the case at hand, conflictingmedical evidence was [*2]presented concerning whether petitioner'spsychological problems and irritable bowel syndrome permanently incapacitated him from performinghis duties as a police detective (see e.g.Matter of Harko v New York State Comptroller, 46 AD3d 1185 [2007]; Matter ofRovegno v Regan, 103 AD2d 877 [1984]). It is well settled that the Comptroller is vested with theexclusive authority to credit the opinion of one medical expert over that of another (see Matter of Quigley v Hevesi, 48 AD3d1023, 1025 [2008]). In view of this, and given the evidence establishing that petitioner did notsuffer from permanent incapacitation due to his afflictions, substantial evidence supports theComptroller's decision.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.