| Matter of Gatewood v DiNapoli |
| 2009 NY Slip Op 02285 [60 AD3d 1266] |
| March 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gail D. Gatewood, Petitioner, v ThomasP. DiNapoli, as New York State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Rose, 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 whichdenied petitioner's application for disability retirement benefits.
Petitioner ceased working as a licensed practical nurse and submitted an application forordinary disability retirement benefits premised on permanent disability resulting from, amongother ailments, chronic pain due to scoliosis, cervical neck disease and costochondritis. Herapplication was disapproved by the New York State and Local Retirement System. Petitionersought a redetermination, and a Hearing Officer found that she failed to establish that she waspermanently incapacitated from the performance of her duties and denied her application. Whenrespondent accepted those findings, petitioner commenced this CPLR article 78 proceedingchallenging his determination.
As an applicant for disability retirement benefits, petitioner bore the burden of proving thatshe was permanently incapacitated from performing her duties as a licensed practical nurse (see Matter of Mainzer v DiNapoli, 52AD3d 1167, 1167 [2008]). In attempting to do so, petitioner offered the report of anindependent medical examiner who concluded, after examining [*2]her at the request of the Retirement System, that she waspermanently disabled and unable to perform the functions of her job. Testifying that she sufferedconstant pain in her neck, lower back, knees and left elbow, petitioner also submitted medicalrecords describing her treatment, by a number of physicians, for those infirmities. However, twoof those physicians, despite being asked whether petitioner was permanently disabled, failed toindicate that she was.
In rebutting petitioner's evidence, the Retirement System offered the testimony of a secondindependent medical examiner who reached the opposite conclusion regarding petitioner's abilityto perform the duties associated with her employment. That physician testified that he observednumerous inconsistencies between petitioner's professed inability to move a specific body partwhen he attempted to test her range of motion, as compared to her ability to readily move itwhen it was not being tested. Based on that evaluation, as well as his review of petitioner'smedical file, the medical examiner concluded that she was not permanently incapacitated.
Where, as here, there is conflicting medical evidence, respondent is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert overanother (see Matter of Johnson v NewYork State & Local Retirement Sys., 54 AD3d 1130, 1131 [2008]). Inasmuch as thecredited expert's articulated opinion was rational, fact-based, and founded upon a physicalexamination and review of relevant medical reports and records, we decline to disturbrespondent's determination, notwithstanding evidence in the record that may have supported acontrary conclusion (see Matter ofDoran v New York State & Local Police & Fire Retirement Sys., 56 AD3d 922, 923[2008]).
Cardona, P.J., Kane, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.