| Matter of Browne v DiNapoli |
| 2011 NY Slip Op 05619 [85 AD3d 1535] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of John T. Browne, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Malone Jr., 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 whichdenied petitioner's applications for accidental and performance of duty disability retirementbenefits.
Petitioner, a police officer, was injured in an accident while on duty in 2005. In 2007, heretired and subsequently filed applications for accidental and performance of duty disabilityretirement benefits. After his applications were initially denied, petitioner sought a hearing andredetermination. The Hearing Officer denied petitioner's applications, finding that he is notpermanently incapacitated from the performance of his duties as a police officer. Upon review,respondent affirmed. Petitioner thereafter commenced this proceeding pursuant to CPLR article78.
As the applicant, petitioner bore the burden of establishing that he is permanently disabledfrom the performance of his employment duties (see Matter of Girsh v DiNapoli, 79 AD3d 1444, 1444 [2010]; Matter of Ragno v DiNapoli, 68 AD3d1342, 1343 [2009]). Where [*2]conflicting medical evidenceis presented, respondent is authorized to weigh the evidence and credit the opinion of one expertover that of another (see Matter of Girsh v DiNapoli, 79 AD3d at 1445; Matter of Rolandelli v Hevesi, 27AD3d 945, 946 [2006]). Petitioner submitted medical evidence indicating that, for workers'compensation purposes, he has a 30% schedule loss of use of his left shoulder as a result of thesubject accident. Petitioner also submitted the report of a neurologist who opined that there wasboth subjective and objective evidence of radiculopathy due to cervical spine injury, indicatingdisability related to the subject accident. However, the New York State and Local RetirementSystem submitted the reports of John Mazella, an orthopedist, who, after examining petitionerand reviewing the relevant medical records, concluded that petitioner was not disabled and had asatisfactory outcome following shoulder surgery with no objective clinical findings to support hissubjective complaints relative to his shoulder, neck or back. Inasmuch as Mazella's reportsprovide "substantial evidence in the form of a rational and fact-based, articulated medicalopinion," respondent's determination is adequately supported and we will not disturb it, althoughthe record also contains evidence that would support an alternate result (Matter of Salik v New York State & LocalEmployees' Retirement Sys., 69 AD3d 1029, 1030 [2010]; see Matter of Ragno vDiNapoli, 68 AD3d at 1344; Matter of Rolandelli v Hevesi, 27 AD3d at 946).
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.