| Matter of Ragno v DiNapoli |
| 2009 NY Slip Op 09141 [68 AD3d 1342] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Domenico G. Ragno, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
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Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a police officer, sustained an injury to his left wrist while teaching a defensivetactics training class. His initial application for performance of duty disability retirement benefitswas denied based partly upon medical testimony indicating that his injury was easily treatablethrough a routine surgical procedure. Despite undergoing the recommended surgery, petitioner'swrist did not improve and, in 2005, he again sought performance of duty disability retirementbenefits. After his application was disapproved, petitioner requested a redetermination andhearings were held. A Hearing Officer subsequently determined that petitioner was notpermanently incapacitated from performing the duties of a police officer and denied hisapplication. Respondent adopted the Hearing Officer's findings, prompting this CPLR article 78proceeding.[*2]
We confirm. As an applicant for benefits, petitioner borethe burden of proving "that he was permanently incapacitated from performing his duties as apolice officer" (Matter of Lynn v Officeof Comptroller of State of N.Y., 16 AD3d 935, 936 [2005]; Matter of Kennedy v New York State &Local Police & Fire Retirement Sys., 57 AD3d 1050, 1050-1051 [2008]; Matter of Mainzer v DiNapoli, 52AD3d 1167, 1167 [2008]). To that end, petitioner offered testimony regarding his currentsymptoms and the manner in which they prevent him from, among other things, firing andsafeguarding his weapon, operating an emergency vehicle or restraining a combative suspect. Healso submitted, in addition to other medical records, the report of his hand surgeon, AndrewKleinman, who opined that petitioner is "permanently partially disabled" and suffers from wristpain that is "probably not correctable." In contrast, John Mazella, a board-certified orthopedicsurgeon who examined petitioner at the request of the New York State and Local RetirementSystem on multiple occasions, testified that petitioner was not permanently incapacitated fromperforming the functions of a police officer. Indeed, Mazella opined that there was nophysiological evidence to support petitioner's subjective complaints of wrist pain and "noorthopedic disability precluding his full duty status."
It is well settled that "[r]espondent possesses the authority to resolve conflicts in the medicalevidence and to credit one expert's opinion over that of another, so long as the credited expertarticulates a rational and fact-based opinion founded upon a physical examination and review ofthe pertinent medical records" (Matterof Freund v Hevesi, 34 AD3d 950, 950 [2006]; see Matter of Macri v DiNapoli, 56 AD3d 936, 937 [2008]).Accordingly, inasmuch as Mazella's opinion satisfies the foregoing criteria, respondent'sdetermination is supported by substantial evidence and we decline to disturb it (see Matter of Dingee v DiNapoli, 56AD3d 876, 877 [2008]; Matter ofLiber v McCall, 6 AD3d 950, 950-951 [2004]).
Spain, Rose, Kane and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.