| Matter of Murray v New York State Comptroller |
| 2011 NY Slip Op 04352 [84 AD3d 1681] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kevin Murray, Petitioner, v New YorkState Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
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 respondentComptroller which denied petitioner's applications for accidental and performance of dutydisability retirement benefits.
Petitioner, a police officer, allegedly sustained various injuries to his left hip and lower backfollowing a December 1998 incident wherein he fell while pursuing a fleeing suspect down adimly lit street. Following a period of disability, he returned to work in a restricted duty capacityuntil September 2005, when he experienced a jolt of pain to his lower back while stepping out ofthe shower. In December 2005, petitioner applied for accidental and performance of dutydisability retirement benefits alleging that he was permanently incapacitated as the result of theDecember 1998 incident. Those applications were separately denied upon the grounds that theDecember 1998 incident did not constitute an accident within the meaning of Retirement andSocial Security Law § 363 and petitioner was not permanently incapacitated from theperformance of his duties. Following a hearing and redetermination, a Hearing Officer reachedthe same conclusions. Respondent Comptroller upheld the Hearing Officer's denial of petitioner'srespective applications, and petitioner thereafter commenced this proceeding pursuant to CPLRarticle 78 to challenge that determination.[*2]
Preliminarily, we reject petitioner's assertion that theComptroller improperly relied upon the written reports of Leon Sultan, the orthopedic surgeonwho evaluated petitioner on behalf of respondent New York State and Local Police and FireRetirement System but did not testify at the hearings. Petitioner was well aware that theRetirement System was considering submitting Sultan's reports in lieu of testimony and raised noobjection in this regard until his posthearing memorandum of law; even then petitioner onlyobjected on the ground that the record lacked proof that Sultan qualified as an expert. Havingfailed to raise a timely objection to the admission of Sultan's reports or otherwise request to callSultan as a witness, petitioner waived any objection to Sultan's credentials and the admissibilityof the reports, as well as any claim that he was deprived of the opportunity to cross-examineSultan (see Matter of Meluch v NewYork State & Local Police & Fire Retirement Sys., 80 AD3d 976 [2011]; Matter of Fochi v New York StateComptroller, 78 AD3d 1460, 1461 [2010], lv denied 16 NY3d 707 [2011]).
Turning to petitioner's respective applications, "an incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where the injury results from anexpected or foreseeable event arising during the performance of routine employment duties" (Matter of Hardy v DiNapoli, 82 AD3d1490, 1490 [2011] [internal quotation marks and citations omitted]; see Matter of Henry v DiNapoli, 82AD3d 1446, 1447 [2011]; Matter ofCrisera v New York State Comptroller, 79 AD3d 1573 [2010], lv denied 16NY3d 712 [2011]). The pursuit of a fleeing suspect plainly qualifies as an ordinary employmentduty of a police officer (see Matter ofMelendez v New York State Comptroller, 54 AD3d 1128, 1129 [2008], lvdenied 12 NY3d 706 [2009]), and petitioner acknowledged that he had chased suspects inthe dark before and was expected to do so under any type of weather or road conditions. Underthese circumstances, substantial evidence supports the Comptroller's determination thatpetitioner's injury was a risk inherent in the performance of his ordinary employment duties and,therefore, the December 1998 incident did not qualify as an accident (see Matter of Neidecker v DiNapoli, 82AD3d 1483, 1484 [2011]; Matter of Crisera v New York State Comptroller, 79AD3d at 1573-1574; Matter of Melendez v New York State Comptroller, 54 AD3d at1129-1130; Matter of Fischer v NewYork State Comptroller, 46 AD3d 1006 [2007]).
As to petitioner's application for performance of duty disability retirement benefits, theparties acknowledge that the relevant inquiry is whether petitioner, having served in a restrictedduty capacity since 1999, is permanently incapacitated from the performance of thoselimited—and essentially clerical—duties (see Matter of Keil v New York State Comptroller, 66 AD3d 1317,1318 [2009]; Matter of Riguzzi vHevesi, 16 AD3d 822, 823 [2005]; 2 NYCRR 364.3 [b]). Although the record containsconflicting proof on this point, the Comptroller "is vested with the exclusive authority to weighsuch evidence and credit the opinion of one medical expert over another" (Matter of Girsh v DiNapoli, 79 AD3d1444, 1445 [2010] [internal quotation marks and citation omitted]; see Matter of Brady v DiNapoli, 77AD3d 1041, 1042 [2010]). Inasmuch as substantial evidence supports the Comptroller'sfinding that petitioner is not permanently incapacitated from performing his restrictedassignment, the underlying determination is confirmed (see Matter of Riguzzi v DiNapoli, 82 AD3d 1484, 1485 [2011]).
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.