| Matter of Feeney v DiNapoli |
| 2009 NY Slip Op 09360 [68 AD3d 1425] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kevin P. Feeney, Petitioner, v Thomas P.DiNapoli, as New York State Comptroller, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondents.
Kane, 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 Comptrollerwhich denied petitioner's applications for accidental and performance of duty disabilityretirement benefits.
Petitioner began working as a police officer in 1979, continuing with the same employer indifferent positions until 2005, when he filed for accidental and performance of duty disabilityretirement benefits. Both applications were denied. Following a hearing, a Hearing Officerupheld the denial, as did respondent Comptroller. Petitioner commenced this proceedingchallenging the Comptroller's denial of his applications.
Substantial evidence supports the Comptroller's determination that none of petitioner'swork-related injuries was the direct and proximate cause of his permanent disability.Respondents concede that petitioner is permanently disabled from resuming his duties as a policeofficer. To obtain accidental or performance of duty disability retirement benefits, however,petitioner bore the burden of [*2]demonstrating that he wasincapacitated from the performance of duty as the natural and proximate result of an accident ordisability sustained in service (see Retirement and Social Security Law § 363 [a][1]; § 363-c [b] [1]; see also Matter of Brennan v New York State & Local Empls.Retirement Sys., 50 AD3d 1374, 1375 [2008]). Petitioner presented his own testimony andmedical records, none of which proved a causal link between his work-related injuries and hispermanent disability. Respondent New York State and Local Employees' Retirement Systemprovided the testimony and report of a board-certified orthopedist who, after examiningpetitioner and reviewing his medical records, opined that petitioner is permanently disabled dueto his back condition, but that his disability is solely attributable to an off-duty injury. Thisexpert also opined that petitioner's knee injuries did not render him permanently disabled. Wewill not substitute our judgment for that of the Comptroller, as the orthopedist's factually-basedopinion constitutes substantial evidence supporting the determination to deny petitioner'sapplications because his disability was not proximately caused by injuries suffered while on duty(see Matter of Amedio v Hevesi, 45 AD3d 1004, 1006 [2007], appeal dismissed10 NY3d 744 [2008]).
We need not address the timeliness of petitioner's notice to the Comptroller regarding oneparticular work-related accident, as that accident was determined not to be a proximate cause ofpetitioner's permanent disability.
Peters, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.