| Matter of McAuliffe v DiNapoli |
| 2011 NY Slip Op 03331 [83 AD3d 1366] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Timothy P. McAuliffe,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Kavanagh, 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 which,among other things, denied petitioner's application for performance of duty disability retirementbenefits.
Petitioner was employed as a criminal investigator for the Westchester County DistrictAttorney. He suffered a myocardial infarction in 1997 and, as is relevant here, applied forperformance of duty disability retirement benefits in 2006 (see Retirement and SocialSecurity Law §§ 63-e, 63-f). The New York State and Local Employees' RetirementSystem denied the application, finding that petitioner was permanently incapacitated fromperforming his duties, but that his disability was not a natural and proximate result of them.Petitioner sought a hearing and redetermination, following which a Hearing Officer agreed withthe Retirement System. Respondent adopted the Hearing Officer's findings and deniedpetitioner's application, and this CPLR article 78 proceeding ensued.[*2]
The parties do not dispute that petitioner has a heartcondition that permanently incapacitates him from performing his duties, and petitioner reliesupon the statutory presumption contained in Retirement and Social Security Law § 63-f toestablish that the disability arose from his job duties. Accordingly, the sole issue before us iswhether the Retirement System rebutted that presumption by competent medical evidence (see Matter of Rivera v DiNapoli, 78AD3d 1295, 1296 [2010]; Matter ofFeldon v New York State Comptroller, 69 AD3d 1092, 1092-1093 [2010], lvdenied 15 NY3d 702 [2010]). In that regard, the Retirement System offered the report ofRichard Cantor, a physician who examined petitioner and reviewed his medical records. Cantoracknowledged that petitioner's 1997 myocardial infarction could have been caused by an incidentwherein a large dog unexpectedly jumped on him while working. However, Cantor opined thatpetitioner's disability did not arise from the myocardial infarction, but rather from coronary arterydisease that was entirely attributable to his history of cigarette smoking. Notwithstandingevidence in the record that could justify a different result, Cantor's rational and fact-basedopinion provided substantial evidence to support respondent's determination that the heartpresumption had been rebutted (see Matter of Tucker v McCall, 262 AD2d 916, 917-918[1999]; Matter of McComb v Regan, 180 AD2d 862, 863 [1992]; Matter of Nerney vNew York State Policemen's & Firemen's Retirement Sys., 156 AD2d 775, 775-776 [1989],lv denied 75 NY2d 710 [1990]).
Spain, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.