| Matter of Camera v DiNapoli |
| 2012 NY Slip Op 00698 [92 AD3d 1019] |
| February 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Francis A. Della Camera,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Kavanagh, 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, applied for accidental and performance of duty disabilityretirement benefits, claiming that he was permanently incapacitated from performing his jobduties as the result of injuries sustained in several work-related incidents. The applications wereinitially denied and petitioner sought a hearing and a redetermination. Following a hearing, theHearing Officer denied the applications, finding, among other things, that petitioner was notpermanently incapacitated from performing his job duties. Respondent adopted thatdetermination with supplemental conclusions of law, prompting this CPLR article 78 proceeding.
We confirm. "As an applicant for accidental and performance of duty disability retirementbenefits, petitioner bore the burden of proving that he is permanently incapacitated fromperforming his job duties" (Matter ofGirsh v DiNapoli, 79 AD3d 1444, 1444 [2010][*2][internal quotation marks and citations omitted]; accord Matter of Wilkinson vDiNapoli, 86 AD3d 851, 852 [2011]). To that end, petitioner submitted the medicalreports of various treating physicians, in which they opined that petitioner was either partially ortotally disabled at the time of their examination. None of these physicians, however, opined as towhether petitioner's disability was permanent. In contrast, the New York State and LocalRetirement System submitted the report of physician John Mazella, who examined petitioner onits behalf. Based upon his examination of petitioner and review of his pertinent medical records,Mazella found both cervical and lumbar strains and concluded that petitioner "is not permanentlydisabled and is able to perform all the duties of the position of police officer."
Under circumstances such as these, where conflicting medical evidence is presented,"respondent is vested with the authority to resolve such conflict and to credit the opinion of oneexpert over that of another" (Matter ofHall v McCall, 2 AD3d 1026, 1027 [2003]; accord Matter of Salik v New York State & Local Employees' RetirementSys., 69 AD3d 1029, 1030 [2010]). Here, the expert opinion credited by respondent wasrational, fact-based and made following a physical examination of petitioner and a review of hismedical records. Accordingly, respondent's determination is supported by substantial evidenceand it will not be disturbed (see Matterof Meluch v New York State & Local Police & Fire Retirement Sys., 80 AD3d 976, 977[2011]; Matter of Fochi v New YorkState Comptroller, 78 AD3d 1460, 1461-1462 [2010], lv denied 16 NY3d 707[2011]).
Petitioner's remaining claims have been examined and found to be either unpersuasive orrendered academic in light of the above conclusions.
Mercure, A.P.J., Spain, Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.