| Matter of Capraro v DiNapoli |
| 2012 NY Slip Op 00087 [91 AD3d 1020] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Richard J. Capraro, Jr.,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits in December2007 following an incident in which he slipped on black ice while climbing a set of metal stepsand injured his left knee and right shoulder. Based upon the results of an independent medicalexamination that found that petitioner was not permanently incapacitated, his application wasdenied. Following a hearing to challenge the denial, the Hearing Officer ruled that petitioner hadfailed to carry his burden of proof regarding the permanency of his incapacity. Respondentaccepted the findings and conclusions of the Hearing Officer and denied petitioner's application,prompting the commencement of this CPLR article 78 proceeding.
We confirm. An applicant for accidental disability retirement benefits bears the burden ofproving that he or she is permanently incapacitated from performing his or her job duties (see [*2]Matter of Wilkinson v DiNapoli, 86 AD3d 851, 852[2011]; Matter of Byrne v DiNapoli,85 AD3d 1530, 1531 [2011]). Here, the only competent medical evidence presented was anindependent medical examination that found that the December 2007 incident did not causepetitioner's knee injury, but, rather, aggravated a preexisting condition and that temporarydamage to the knee had been resolved to its preaccident condition. The report further opined thatthe accident was the cause of petitioner's right shoulder injury, but that a reasonably safe surgicalprocedure was available that would correct that condition. Inasmuch as respondent's denial ofbenefits was premised upon this medical report, we find that the determination was supported bysubstantial evidence (see Matter of Birov DiNapoli, 85 AD3d 1531, 1533 [2011]; Matter of Hodio v DiNapoli, 84 AD3d 1686, 1686 [2011]).
Petitioner further contends that the Hearing Officer erred in failing to consider certainmedical evidence presented and in refusing a request for an adjournment of the hearing to submitadditional evidence. We disagree. Upon his application for benefits, petitioner was sent a letterby the New York State and Local Retirement System informing him that he had 45 days tosubmit additional medical information. The record discloses that petitioner made twosubmissions of medical information, both well past the 45-day deadline, and neither appeared toinclude information about the results of his shoulder surgery. Furthermore, while the regulationsrequire that an adjournment be requested in writing at least three days prior to thecommencement of a hearing, petitioner did not request an adjournment for the purpose ofsubmitting additional medical evidence until after the hearing commenced (see 2NYCRR 317.5 [b]). Inasmuch as petitioner had the opportunity, pursuant to the regulations, tosubmit additional medical information or timely request an adjournment for that purpose, wecannot say that the Hearing Officer's rulings enforcing the Retirement System's rules wereimproper or an abuse of discretion (see 2 NYCRR 317.5 [b]; 317.9 [b]; Matter ofDecker v McCall, 305 AD2d 782, 783 [2003], lv denied 100 NY2d 512 [2003];Matter of Di Francesco v Comptroller of State of N.Y., 277 AD2d 762, 762-763 [2000]).
Mercure, A.P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.