| Matter of Kaufman v Murray |
| 2011 NY Slip Op 05618 [85 AD3d 1534] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Steven H. Kaufman, Petitioner, v Kevin F. Murray,as Deputy State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Rose, 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 the Comptroller whichdenied petitioner's applications for accidental and performance of duty disability retirementbenefits.
Petitioner applied for accidental and performance of duty disability retirement benefits,claiming that he was unable to perform his duties as a police officer due to injuries sustained inseveral work-related accidents. Following the denial of his applications, petitioner sought ahearing and redetermination. The Hearing Officer denied petitioner's applications, finding,among other things, that he was not permanently incapacitated from his work duties. TheComptroller accepted the findings and conclusions of the Hearing Officer and upheld the denialof petitioner's applications, prompting this CPLR article 78 proceeding.
In connection with both of his applications, petitioner was required to demonstrate that hewas permanently incapacitated from the performance of his duties as a police officer (see Matter of Girsh v DiNapoli, 79AD3d 1444, 1444 [2010]; Matter of Eddie v DiNapoli, 72 AD3d [*2]1326, 1327 [2010]). Where, as here, the record contains conflictingmedical evidence, it is within the exclusive authority of the Comptroller to weigh such evidenceand assess the credibility of the medical experts (see Matter of Girsh v DiNapoli, 79AD3d at 1445; Matter of Eddie v DiNapoli, 72 AD3d at 1327; Matter of Stern v DiNapoli, 57 AD3d1076, 1077 [2008]). The record here contains opinions from medical experts indicating thatpetitioner's condition is degenerative in nature and that there is no evidence of acute injuryrelated to his employment incidents that would prevent him from performing his work duties.Inasmuch as the medical experts credited by the Comptroller had conducted physicalexaminations of petitioner, reviewed the pertinent medical records and provided rational,fact-based opinions, the Comptroller's determination is supported by substantial evidence and wewill not disturb it, despite the existence of proof that may support another conclusion (seeMatter of Girsh v DiNapoli, 79 AD3d at 1445; Matter of Caruana v DiNapoli, 78 AD3d 1302, 1303 [2010];Matter of Stern v DiNapoli, 57 AD3d at 1077). In view of our decision, petitioner'sremaining contention is academic.
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.