| Matter of Bautista v DiNapoli |
| 2010 NY Slip Op 01047 [70 AD3d 1165] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Rosina Bautista, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
McCarthy, 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 respondent whichdenied petitioner's application for ordinary disability retirement benefits.
Petitioner, a maintenance worker at New Rochelle High School in Westchester County,sustained various injuries in multiple incidents that occurred between 1994 and 2001. She ceasedworking in May 2001 and applied for ordinary disability retirement benefits shortly thereafter.Respondent ultimately denied her application on the ground that petitioner did not demonstratethat she was permanently incapacitated from performing her job duties. This CPLR article 78proceeding ensued.
We disagree with petitioner's assertion that the Hearing Officer's decision, subsequentlyadopted by respondent, fails to set forth an adequate factual basis for denying her application (see Matter of Leach v New York StateComptroller, 62 AD3d 1203, 1204 [2009]). Indeed, that decision is clearly based on theexpert medical opinions of three physicians who examined [*2]petitioner on behalf of the New York State and Local Employees'Retirement System. Specifically, Edward Wolff, an internist, opined that petitioner was notpermanently disabled as a result of a hernia, and Mark Kramer, a board-certified specialist inorthopaedic surgery, concluded that there were no objective findings indicating that petitionerwas permanently incapacitated from performing the functions of her position due to knee, neck,back or elbow injuries. Steven Schwartz, a board-certified neurologist, testified similarly, statingthat petitioner did not have any nervous system deficits that limited her ability to do her job.
Although petitioner's treating physicians reached different conclusions regarding the level ofher incapacity, respondent possesses the broad authority to resolve conflicts in medical evidenceand to credit the opinion of one expert over that of another (see Matter of Hoehn v Hevesi, 14 AD3d 761, 763 [2005], lvdenied 4 NY3d 708 [2005]). Inasmuch as the Retirement System's experts articulatedrational and fact-based opinions after physically examining petitioner and reviewing pertinentmedical records and reports, respondent's determination is supported by substantial evidence andwe decline to disturb it (see Matter ofGatewood v DiNapoli, 60 AD3d 1266, 1267 [2009]). Petitioner's remainingcontentions, to the extent not specifically referenced herein, have been considered and are foundto be without merit.
Cardona, P.J., Peters, Rose and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.