| Matter of Marinelli v DiNapoli |
| 2011 NY Slip Op 01567 [82 AD3d 1347] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of David Marinelli, Jr., Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, 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 applications for accidental disability and performance of duty disabilityretirement benefits.
Petitioner was employed as a police officer by the Town of Harrison Police Department inWestchester County when he was assigned to escort a religious dignitary's motorcade in April2001. While awaiting the dignitary's arrival, he experienced chest and shoulder pain andotherwise felt ill. He declined medical attention and carried on to fulfill his escortresponsibilities. When the symptoms did not resolve overnight, he went to the hospital and wasdiagnosed as having suffered a heart attack.
Approximately one year later, petitioner returned to work on desk duty, but he found it toostressful and ceased working in 2004. When his applications for accidental disability andperformance of duty disability retirement benefits were disapproved, he requested aredetermination. After a hearing, a Hearing Officer denied his applications. Respondentthereafter adopted the Hearing Officer's findings and conclusions, prompting this CPLR article[*2]78 proceeding.
Petitioner argues that he is entitled to disability retirement benefits because the New YorkState and Local Police and Fire Retirement System failed to rebut the statutory "heartpresumption," which provides that "any condition of impairment of health caused by diseases ofthe heart, resulting in disability . . . shall be presumptive evidence that it wasincurred in the performance and discharge of duty" (Retirement and Social Security Law §363-a [2]). We do not agree. Respondent relied upon the report of physician Richard Cantor who,after examining petitioner and reviewing his medical records, opined that petitioner's"myocardial infarction in April of 2001 was not causally related to his standing by the thruwaywaiting to escort a car [but] rather due to his longstanding cigarette smoking and possiblehyperlipidemia." Cantor's conclusion is amply supported by medical records, including somerecords that predate petitioner's April 2001 heart attack. Those records note petitioner's highcholesterol level and also describe medical procedures performed on him, such as the placementof stents, designed to address plaque buildup in his arteries. Cantor's opinion, together with themedical records, constitutes "competent evidence" rebutting the statutory presumption(Retirement and Social Security Law § 363-a [2]; see Matter of O'Sullivan v DiNapoli, 68 AD3d 1416, 1417-1418[2009]; Matter of Bryant v Hevesi,41 AD3d 930, 932 [2007]; Matterof Larberg v Hevesi, 17 AD3d 979, 980-981 [2005], lv denied 5 NY3d 707[2005]). To the extent that other record evidence could support a contrary conclusion, respondentwas entitled to resolve such conflicts (see Matter of Krupinski v McCall, 302 AD2d 676,677 [2003]). Accordingly, we find that respondent's determination to deny benefits wassupported by substantial evidence.
Rose, J.P., Kavanagh and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.