| Matter of Neely v DiNapoli |
| 2010 NY Slip Op 02466 [71 AD3d 1367] |
| March 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Wayman Neely, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Garry, 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 whichdenied petitioner's applications for disability and performance of duty disability retirementbenefits.
Petitioner, a correction officer, was injured in February 1985 when he fell from a ladderduring a training exercise and sustained calcaneal fractures of both ankles. Following multiplesurgeries and a lengthy rehabilitation, petitioner returned to work. Thereafter, in January 2000,while attempting to quell a disturbance between two inmates, petitioner twisted and reinjuredone or both of his ankles. Although not entirely clear from the record, it appears that petitionercontinued to work—at least intermittently—until he retired in July 2003.
Petitioner thereafter applied for enhanced disability retirement benefits under Retirement andSocial Security Law § 507-a contending, insofar as is relevant to this proceeding, that theFebruary 1985 incident constituted an accident within the meaning of the Retirement and SocialSecurity Law. Petitioner also applied for performance of duty disability retirement benefits underRetirement and Social Security Law § 507-b asserting that he was permanentlyincapacitated as the result of the January 2000 incident. Respondent denied petitioner's [*2]respective applications, and petitioner requested a hearing andredetermination.
At the conclusion of the hearings, the Hearing Officer denied petitioner's disabilityretirement application, finding that the February 1985 incident did not constitute an accident. Asto petitioner's performance of duty disability retirement application, the Hearing Officer foundthat although petitioner indeed was permanently incapacitated from the performance of hisduties, such disability was not the proximate result of the January 2000 incident. Respondentadopted the Hearing Officer's findings and denied petitioner's applications. Petitionercommenced this CPLR article 78 proceeding to challenge that determination.
Upon his disability retirement application, petitioner bore the burden of demonstrating thatthe February 1985 incident constituted an accident within the narrow meaning of the Retirementand Social Security Law (see Matter ofGrutzner v Murray, 68 AD3d 1231, 1232 [2009]; Matter of Melendez v New York State Comptroller, 54 AD3d1128, 1129 [2008], lv denied 12 NY3d 706 [2009]). Accidental disability retirementbenefits are not available where the "event precipitating the injury is a risk of the applicant'sordinary employment duties" (Matter ofCoon v New York State Comptroller, 30 AD3d 884, 885 [2006], lv denied 7NY3d 717 [2006]). This principle applies with equal force when "the incident in questionresulted from a training program constituting an ordinary part of [the] petitioner's job duties andthe normal risks arising therefrom" (Matter of DeLaCruz v DiNapoli, 67 AD3d 1297, 1298 [2009][internal quotation marks and citation omitted]; see Matter of Stimpson v Hevesi, 38 AD3d 979, 980 [2007]; Matter of Felix v New York StateComptroller, 28 AD3d 993, 994 [2006]). Petitioner testified that he slipped and fellwhile climbing a ladder during an academy training exercise. Although his misstep may havebeen caused by sweat on the ladder rungs from other trainees, this is not sufficient to require anaward of accidental disability retirement benefits (see Matter of Stimpson v Hevesi, 38AD3d at 980). Respondent's determination on this point is supported by substantial evidence.
We reach a similar conclusion with regard to the denial of petitioner's performance of dutydisability application. At the hearing, the New York State and Local Employees' RetirementSystem conceded that petitioner was permanently incapacitated from the performance of hisduties, leaving for consideration only the issue of whether such disability was the "natural andproximate result" of the January 2000 injury (Retirement and Social Security Law § 507-b[a]). Petitioner submitted medical reports from various physicians suggesting that his disabilitywas precipitated, at least in part, by the January 2000 incident. However, John Mazella, theboard-certified orthopedic surgeon who evaluated petitioner on behalf of the Retirement System,opined that petitioner's disability was the result of severe post-traumatic osteoarthritis broughtabout by the bilateral 1985 fractures. Specifically, Mazella testified that the arthritis he observedin 2005 could not possibly have resulted solely from the 2000 incident; rather, such conditionwas the cumulative result of an ongoing development. Mazella stated that even in the absence ofthe January 2000 event, petitioner eventually would have reached the point where he no longercould have performed his duties as a correction officer.
"Where, as here, there is conflicting medical evidence, respondent is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert overanother" (Matter of Gatewood vDiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]; see Matter of Ragno v DiNapoli, 68AD3d 1342, 1344 [2009]). As Mazella articulated a rational and fact-based opinionpremised upon his physical examination of petitioner and his review of relevant medical records,respondent's determination is supported by substantial evidence and [*3]will not be disturbed (see Matter of Hammond-Timpano v New York State & Local RetirementSys., 65 AD3d 1439, 1440 [2009]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.