| Matter of Stern v DiNapoli |
| 2008 NY Slip Op 09529 [57 AD3d 1076] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Michael D. Stern, 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 accidental disability retirement benefits.
Petitioner, a police lieutenant employed by the City of Yonkers Police Department in WestchesterCounty, retired in February 2003. In November 2003, petitioner applied for accidental disabilityretirement benefits alleging that he was permanently disabled as the result of five accidents that occurredbetween 1992 and 1999, including, among other things, two slip and falls and one minor caraccident.[FN*]Following disapproval of his application, petitioner sought a hearing and redetermination, at [*2]the conclusion of which a Hearing Officer found that petitioner failed toestablish that he was permanently incapacitated from the performance of his duties. Respondent made asupplemental finding of fact and otherwise accepted the Hearing Officer's findings and conclusions,prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge thatdetermination.
To be eligible to receive disability retirement benefits, a petitioner must demonstrate, among otherthings, that he or she is " 'permanently incapacitated from performing his or her regular job duties' " (Matter of Scheuring v New York StateComptroller, 32 AD3d 1127, 1128 [2006], quoting Matter of Liber v McCall, 6 AD3d 950, 950 [2004]; accord Matter of Wilson v New York State &Local Police & Fire Retirement Sys., 53 AD3d 762, 763 [2008]). Further, where theevidence provided by medical experts is conflicting, respondent has " 'the authority to . . .credit one expert's opinion over that of another, so long as the credited expert articulates a rational andfact-based opinion founded upon a physical examination and review of the pertinent medical records' "(Matter of Wilson v New York State & Local Police & Fire Retirement Sys., 53 AD3d at763, quoting Matter of Freund v Hevesi,34 AD3d 950, 950 [2006]).
Here, petitioner presented the records of his several treating physicians, including neurologistMichael Weintraub, who opined that petitioner suffered from cervical radiculitis and, consequently, waspermanently incapacitated from performing his duties as a police lieutenant. Additionally, orthopedicsurgeons William Unis and Norman Heyman found that petitioner was permanently incapacitated as theresult of disc herniations and prominent spinal cord compression. Petitioner also relied on the report ofneurologist Steven Schwartz, who performed an examination at the request of the New York State andLocal Retirement System and found that, while petitioner could perform the administrative duties of apolice lieutenant, he was permanently incapacitated from performing other duties such as makingarrests.
The Retirement System's witness, neurologist Christopher Calder, testified that when he examinedpetitioner in December 2004, he found that petitioner suffered from degenerative disc disease but hadno signs of radicular abnormality. Calder further testified that he found no evidence of spinal cordcompression. Rather, insofar as petitioner was able to alleviate his back pain by "taking Advilsometimes," Calder concluded that petitioner was overstating his symptoms. Based on his examinationand a review of the relevant medical records, Calder opined that petitioner was not permanentlyincapacitated from performing his duties as a police lieutenant. This conclusion was bolstered bypetitioner, who testified that, in the year prior to his retirement, he did not take any extended sick leaveand worked 480 hours of overtime.
In these matters, we are limited to deciding whether the respondent's determination is supported bysubstantial evidence and, despite evidence to the contrary, we do not substitute our judgment for that ofrespondent (see Matter of Wilson v New York State & Local Police & Fire Retirement Sys.,53 AD3d at 763-764; Matter of Amedio vHevesi, 45 AD3d 1004, 1006 [2007], appeal dismissed 10 NY3d 744 [2008]).According respondent due deference in his credibility resolutions, we find that substantial evidencesupports the determination denying petitioner's application [*3]foraccidental disability retirement benefits.
Mercure, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Although petitioner's application wasalso premised upon a sixth occurrence in November 2004, petitioner subsequently conceded that thisoccurrence was an incident and not an accident within the meaning of Retirement and Social SecurityLaw § 363.