| Matter of Hodio v DiNapoli |
| 2011 NY Slip Op 04355 [84 AD3d 1686] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of John W. Hodio, Petitioner, v Thomas P.DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Mercure, J.P. 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, injured his knee when he fell while ascending the precinct stairsat the end of his shift on a cold, snowy day. His applications for accidental and performance ofduty disability retirement benefits were initially denied. After a hearing challenging the denial,the Hearing Officer determined that petitioner was not permanently incapacitated fromperforming his normal employment duties and that the precipitating incident did not constitute anaccident as that term is used in the Retirement and Social Security Law. Respondent Comptrolleraccepted the findings and conclusions of the Hearing Officer and denied petitioner's applications.Petitioner thereafter commenced this CPLR article 78 proceeding.[*2]
With regard to both applications, petitioner was requiredto prove that he was permanently incapacitated from performing his job duties (see Matter of Girsh v DiNapoli, 79AD3d 1444, 1444 [2010]; Matter ofEddie v DiNapoli, 72 AD3d 1326, 1327 [2010]). The Comptroller is vested withauthority to resolve conflicting medical evidence in that regard and to credit one expert's opinionover that of another (see Matter of Girsh v DiNapoli, 79 AD3d at 1445; Matter of Stern v DiNapoli, 57 AD3d1076, 1077-1078 [2008]). Here, a physician who examined petitioner and reviewed hismedical records on behalf of respondent New York State and Local Retirement System submitteda report opining that petitioner had a satisfactory outcome from the reparative surgery and wasnot permanently disabled from the performance of his duties as a police officer. Accordingly, theComptroller's determination is supported by substantial evidence and will not be disturbed,despite the existence of other evidence that may support a different conclusion (see Matter ofGirsh v DiNapoli, 79 AD3d at 1445; Matter of Eddie v DiNapoli, 72 AD3d at 1327;Matter of Stern v DiNapoli, 57 AD3d at 1077-1078). Based upon this decision,petitioner's remaining argument that the incident constituted an accident for purposes ofaccidental disability benefits need not be addressed (see Matter of Eddie v DiNapoli, 72AD3d at 1327; Matter of Achatz v New York State & Local Police & Fire RetirementSys., 239 AD2d 857, 858 [1997]).
Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.