| Matter of Gesner v DiNapoli |
| 2010 NY Slip Op 07847 [78 AD3d 1283] |
| November 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul F. Gesner, Petitioner, v Thomas P.DiNapoli, as State Comptroller, 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 respondent which deniedpetitioner's applications for accidental disability and performance of duty disability retirement benefits.
Petitioner, a police officer, missed three months of work after sustaining a back injury during thecourse of his employment in November 2001. He returned to full-duty status in February 2002,however, and continued to work in that capacity until August 2006, when he transitioned to light dutyas a result of recurring back pain. One month later, petitioner applied for accidental disability andperformance of duty disability retirement benefits, alleging that he was permanently disabled due to theincident that occurred in November 2001. After his applications were disapproved, petitionerrequested a redetermination and a hearing was held. Following the hearing, a Hearing Officerconcluded that petitioner's incapacity was not caused by [*2]theNovember 2001 accident and denied his applications.[FN*]Respondent adopted the Hearing Officer's findings, prompting this CPLR article 78 proceeding.
We confirm. "The medical evidence as to the cause of petitioner's disability was conflicting andrespondent was free to weigh the evidence and credit one expert's opinion over that of another" (Matter of Mazzei v Hevesi, 45 AD3d1103, 1104 [2007] [citation omitted]). Here, two board-certified orthopedic surgeons whoseparately evaluated petitioner agreed that his back problems were attributable to degenerative diseaseand were unrelated to the 2001 accident. Notably, petitioner sought no medical treatment for his backbetween June 2002 and November 2005, at which time he experienced pain while walking in hisdriveway. Although petitioner submitted medical records from physicians who reached contraryconclusions regarding the cause of his injury, respondent acted within his discretion in crediting therational and fact-based opinions found in the record which support his determination (see Matter of Hammond-Timpano v New YorkState & Local Retirement Sys., 65 AD3d 1439, 1440 [2009]).
Petitioner's remaining contentions have been reviewed and are determined to be without merit.
Peters, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: At the hearing, it was conceded thatthe November 2001 incident constituted an accident within the meaning of the Retirement and SocialSecurity Law, and a physician who examined petitioner at the request of the New York State andLocal Retirement System opined that petitioner was permanently incapacitated. The Hearing Officer'sdetermination was limited to whether such incapacity was caused by the 2001 accident.