| Matter of Leach v New York State Comptroller |
| 2009 NY Slip Op 03994 [62 AD3d 1203] |
| May 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of John Leach, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's applications for accidental disability and performance ofduty disability retirement benefits.
Petitioner applied for both accidental disability and performance of duty disability retirementbenefits alleging that he was permanently disabled as a result of injuries he sustained to his neckand back in 2003 during an accident that occurred while he was employed as a police officer.The applications were disapproved and petitioner requested a hearing and redetermination.Following a hearing, the Hearing Officer denied petitioner's applications, finding that hiscondition was developmental and age-related and "not severe enough to render him permanentlydisabled in regard to the performance of" his duties as a police officer. Respondent Comptrolleragreed.
We confirm. Initially, we are satisfied that the Hearing Officer's findings, which wereadopted by the Comptroller, "set forth an adequate statement of the factual basis for thedetermination" (Matter of Montauk Improvement v Proccacino, 41 NY2d 913, 914[1977]).[*2]
Turning to the merits, Stuart Kandel, the expert retainedby respondent New York State and Local Employees' Retirement System and a board-certifiedorthopedic surgeon, testified that petitioner's condition was not caused by his 2003 accident andthat he was not permanently incapacitated from performing his duties as a police officer.Petitioner challenges Kandel's opinion, claiming that it has no evidentiary value because it didnot account for the existence of headaches from which petitioner claimed he suffered as a resultof his accident. However, Kandel claimed that the records of his examination of petitioner do notindicate that petitioner ever stated that headaches were a current complaint. Moreover, Kandelbased his conclusion that petitioner was not permanently incapacitated upon his review of thetestimony of petitioner's orthopedic surgeon and neurologist, as well as Kandel's failure to noteduring his examination of petitioner the presence of any significant objective finding that wouldhave correlated and served to confirm the veracity of petitioner's subjective complaints. Thisconclusion was reinforced by the negative results of an EMG nerve conduction study, as well asX rays of petitioner's back and neck. Since Kandel set out "a rational and fact-based opinionfounded upon a physical examination and review of the pertinent medical records," theComptroller was entitled to credit his opinion over those of petitioner's treating physicians (Matter of Freund v Hevesi, 34 AD3d950, 950 [2006]; see Matter of Matthews v DiNapoli, 58 AD3d 1049, 1050 [2009]).Accordingly, we find that the Comptroller's determination was supported by substantial evidence(see Matter of Matthews v DiNapoli, 58 AD3d at 1050; Matter of Harko v New York StateComptroller, 46 AD3d 1185, 1187 [2007]; Matter of Freund v Hevesi, 34 AD3dat 951).
Rose, J.P., Kane, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.