| Matter of Kutzma v New York State Comptroller |
| 2011 NY Slip Op 09068 [90 AD3d 1291] |
| December 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of Michael D. Kutzma, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Garry, 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 accidental disability retirement benefits.
Petitioner, a court officer, was injured in an altercation outside a courtroom in 2005. Hesubsequently applied for accidental disability retirement benefits, alleging that he waspermanently incapacitated from performing his job duties as a result of his injuries. Theapplication was denied and petitioner requested a hearing and redetermination. Following ahearing, the Hearing Officer upheld the denial, finding that petitioner was not permanentlyincapacitated from performing his job duties. Respondent Comptroller made supplementalfindings of fact but otherwise adopted the Hearing Officer's finding, prompting this CPLR article78 proceeding.
We confirm. An applicant for accidental disability retirement benefits bears the burden ofestablishing that he or she is permanently incapacitated from performing his or her job duties (see Matter of Annis v Murray, 81AD3d 1074, 1075 [2011]; Matter ofGirsh v DiNapoli, 79 AD3d 1444, 1444 [2010]). Further, "in deciding whether [a]petitioner has satisfied this burden, [*2]the Comptroller isempowered to weigh conflicting medical evidence and to credit the opinion of one expert overthat of another" (Matter of Caruana vDiNapoli, 78 AD3d 1302, 1303 [2010], lv denied 16 NY3d 705 [2011]). Here,petitioner presented the testimony and medical report of orthopedic surgeon Mitchell Goldstein,who diagnosed petitioner with tendinitis of the right elbow, neuritis and complex regional painsyndrome. Based upon this diagnosis, Goldstein opined that petitioner is permanentlyincapacitated from performing his job duties. In contrast, respondent New York State and LocalEmployees' Retirement System presented the medical report of Leon Sultan, an orthopedicsurgeon who examined petitioner on its behalf. Based upon his examination, Sultan found nosigns of complex regional pain syndrome and opined that there was no permanent orthopedic orneurological impairments preventing petitioner from performing his job duties.
Initially, we reject petitioner's contention that the Comptroller improperly relied on Sultan'sreport based upon the fact that Sultan did not testify at the hearing. Petitioner neither objected tothe admission of the written report nor requested that Sultan testify. By failing to object to thereport, petitioner waived any objection to its admissibility, and by failing to call Sultan as awitness, he waived his claim that he was deprived of the opportunity for cross-examination (see Matter of Murray v New York StateComptroller, 84 AD3d 1681, 1681-1682 [2011]). Further, although Sultan apparentlymisidentified one of the pain medications that petitioner had been prescribed, this error did notsignificantly undermine the reliability of his opinion regarding permanency. Sultan presented arational and fact-based opinion based upon his physical examination of petitioner and a review ofhis medical records. Accordingly, the Comptroller's decision is supported by substantial evidenceand will not be disturbed, despite evidence in the record supporting a different conclusion (see Matter of Hodio v DiNapoli, 84AD3d 1686, 1686 [2011]; Matter ofBrady v DiNapoli, 77 AD3d 1041, 1043 [2010]).
Rose, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.