| Matter of Bladykas v New York State & Local Employees' RetirementSys. |
| 2010 NY Slip Op 05856 [75 AD3d 749] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Alexander F. Bladykas, Petitioner, v New YorkState and Local Employees' Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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 the Comptroller whichdenied petitioner's application for performance of duty disability retirement benefits.
In December 2001, petitioner was terminated from his position as a correction officer for theNassau County Department of Correction. In May 2002, petitioner suffered a heart attack andapplied for performance of duty disability retirement benefits citing adverse medical conditionsrelated to his prior employment. Specifically, petitioner alleges that the demands of the positionof a correction officer, as well as injuries sustained as the result of a slip and fall in 1994 and analtercation with an inmate in 1997, caused him to suffer from a heart condition, high bloodpressure, stress disorder, arthritis and bursitis and had rendered him permanently disabled.Petitioner's application was denied [*2]and he thereafter sought ahearing and redetermination. Following hearings, the Hearing Officer affirmed the denial ofbenefits, concluding that petitioner had not established that he was permanently incapacitated forthe performance of duty as the result of the act of an inmate (see Retirement and SocialSecurity Law § 607-c [a]). The Comptroller adopted the Hearing Officer's findings andthis CPLR article 78 proceeding ensued.
We confirm. Pursuant to Retirement and Social Security Law § 607-c (a), in order tobe eligible for performance of duty disability retirement benefits, petitioner must establish thathe was "physically or mentally incapacitated for the performance of duties . . . asthe natural and proximate result of any act of any inmate." As this Court has held, to be eligiblefor benefits under this statute, it is required that "a correction officer's injuries be caused bydirect interaction with an inmate" (Matter of Escalera v Hevesi, 9 AD3d 666, 667 [2004], lvdenied 3 NY3d 608 [2004]; accordMatter of Davis v DiNapoli, 56 AD3d 933, 934 [2008]; Matter of Wright v Hevesi, 46 AD3d1184, 1184 [2007]). Here, petitioner presented no evidence that his complaints of a heartcondition, high blood pressure or stress disorder were the result of direct interaction with aninmate. Further, the record regarding the 1994 slip and fall reflects that petitioner was on routinepatrol and injured his knee while walking down stairs, with no evidence presented that any of theinjuries he sustained were caused by direct interaction with an inmate so as to form a basis for anaward of benefits (see Matter ofAllesandro v DiNapoli, 68 AD3d 1592, 1594 [2009], lv denied 14 NY3d 705[2010]).
With regard to the 1997 incident, where petitioner was kicked in the left hip by an inmate,petitioner testified that this injury resulted in severe arthritis in his hip. Petitioner also presenteda letter written by cardiologist Babu Easow, who opined that petitioner is permanently disabledand the disability is related to the 1997 incident. Easow testified, however, that petitioner wasnot permanently disabled due to a cardiac condition and that he based his conclusion onpetitioner's difficulty in walking due to an injured knee, swollen feet and shortness of breath,without relating these conditions to the 1997 incident. In opposition, respondent presented themedical report and testimony of orthopedist Leon Sultan, who examined petitioner and hismedical records and found no ongoing posttraumatic orthopedic impairment preventingpetitioner from performing his duties as a correction officer.
Where, as here, there is conflicting medical evidence, the Comptroller is vested with broadauthority to weigh the evidence and credit the opinion of one medical expert over that of another(see Matter of Bautista v DiNapoli,70 AD3d 1165, 1166 [2010]). Inasmuch as the expert opinion relied on is rational andfact-based and founded upon a physical examination and a review of the pertinent medicalrecords, the Comptroller's determination is supported by substantial evidence and will not bedisturbed (see Matter of Salik v NewYork State & Local Employees' Retirement Sys., 69 AD3d 1029, 1030 [2010]). Finally,insofar as petitioner has not presented any evidence that he is disabled from performing hisduties as the result of a disease of the heart and his heart attack occurred months after hisemployment was terminated, the statutory presumption contained in Retirement and SocialSecurity Law § 607-d is not applicable.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.