| Matter of Baron v New York State Comptroller |
| 2011 NY Slip Op 04350 [84 AD3d 1678] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Paul S. Baron, Petitioner, v New YorkState Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Egan Jr., 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 Comptrollerwhich denied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer, was diagnosed with coronary heart disease in 2006 andapplied for performance of duty disability retirement benefits. The application was initiallydenied on the ground that petitioner's disability was not sustained as the result of his work duties.Petitioner sought a rehearing and redetermination, at the conclusion of which the Hearing Officerupheld the denial, finding that respondent New York State and Local Employees' RetirementSystem had successfully rebutted the statutory "heart presumption" contained in Retirement andSocial Security Law § 607-d. Respondent Comptroller accepted the Hearing Officer'sdetermination, prompting petitioner to commence this CPLR article 78 proceeding.
It is undisputed that petitioner successfully passed his preemployment physical and is nowpermanently disabled from performing his duties as a correction officer due to heart disease.Inasmuch as petitioner relies upon the statutory presumption that his disability incurred in theperformance of his duties as a correction officer contained in Retirement and Social Security Law§ 607-d, it was the Retirement System's obligation to rebut the presumption withcompetent medical evidence (see Matterof Feldon v New York State Comptroller, 69 AD3d 1092, 1093 [2010], lvdenied 15 NY3d 702 [2010]). To that end, the Retirement System presented the report andtestimony of cardiologist Richard Joseph, who examined petitioner on its behalf. Based upon hisexamination of petitioner and a review of his pertinent medical records, Joseph found thatpetitioner suffered from several risk factors associated with heart disease, including elevatedcholesterol, heart palpitations, hypertension and being overweight. Joseph opined that it wasthese risk factors, and not the discharge of petitioner's duties as a correction officer, that causedpetitioner's heart disease.
While Joseph did concede that certain factors that petitioner contends were related to hiswork duties—exposure to viruses, secondhand smoke and a high-fat diet—couldcontribute to heart disease in general, he found no evidence that petitioner's condition was viralnor could he differentiate any exposure to secondhand smoke or fatty foods petitioner may havesuffered outside of work as compared to any alleged exposure at his workplace. In our view,Joseph's opinion, coupled with the identified risk factors, constitutes competent evidencerebutting the statutory presumption and petitioner's application for benefits was properly denied(see id.; Matter of O'Sullivan vDiNapoli, 68 AD3d 1416, 1417-1418 [2009]; Matter of Bryant v Hevesi, 41 AD3d 930, 931-932 [2007]).
Rose, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.