| Matter of Salik v New York State & Local Employees' RetirementSys. |
| 2010 NY Slip Op 00051 [69 AD3d 1029] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Sabina Salik, Petitioner, v New York Stateand Local Employees' Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 the Comptrollerwhich denied petitioner's application for disability retirement benefits.
Petitioner, a keyboard specialist, applied for disability retirement benefits in September2006, asserting that she was permanently disabled due to lower back and neck pain, as well asheadaches and cervical radiculopathy. After her application was disapproved by respondent,petitioner requested a redetermination and a hearing was held. Following the hearing, a HearingOfficer denied petitioner's application on the basis that she had failed to establish that she waspermanently incapacitated from performing her job duties. The Comptroller made twosupplemental findings of fact and a supplemental conclusion of law, but otherwise accepted theHearing Officer's determination. This CPLR article 78 proceeding ensued.
We confirm. A petitioner bears the burden of proving that he or she is permanentlyincapacitated from performing the duties associated with his or her employment (see Matter of Dingee v DiNapoli, 56AD3d 876, 876 [2008]; Matter ofSwack v Hevesi, 30 AD3d 853, 854[*2][2006]). "Ifconflicting medical evidence is presented on this issue, [the Comptroller] is vested with theauthority to resolve such conflict and to credit the opinion of one expert over that of another" (Matter of Hall v McCall, 2 AD3d1026, 1026-1027 [2003] [citations omitted]). The Comptroller's determination in that regardwill be upheld if it is supported by substantial evidence in the form of a rational and fact-based,articulated medical opinion (see Matterof Kratunis v DiNapoli, 60 AD3d 1250, 1251 [2009]; Matter of Hoehn v Hevesi, 14 AD3d761, 762 [2005], lv denied 4 NY3d 708 [2005]).
Here, although one of petitioner's treating physicians opined that petitioner was permanentlydisabled, two others concluded that she was not permanently incapacitated from performing herjob duties. A medical examiner who evaluated petitioner at respondent's request likewiseobserved that petitioner was not permanently disabled or unable to perform the functions of akeyboard specialist. Accordingly, insomuch as the expert opinions relied upon here werefounded upon pertinent medical records and a physical examination of petitioner, we decline todisturb the Comptroller's decision (seeMatter of Gatewood v DiNapoli, 60 AD3d 1266, 1267 [2009]; Matter of Tracy vNew York State & Local Employees' Retirement Sys., 58 AD3d 1006, 1007-1008 [2009]).
Cardona, P.J., Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.