| Matter of Ferris v DiNapoli |
| 2012 NY Slip Op 00896 [92 AD3d 1079] |
| February 9, 2012 |
| Appellate Division, Third Department |
| In the Matter of James Ferris, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Mercure, A.P.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 firefighter, sprained his right knee in 1988 when he slipped while getting out ofa fire truck. In 2008, he injured both knees when he fell while sliding down a fire pole, and hethereafter underwent surgery on his left knee. Petitioner applied for accidental and performanceof duty disability retirement benefits, claiming that he was unable to perform his job duties due tothese injuries. Following the denial of his applications, petitioner sought a hearing andredetermination. A Hearing Officer denied the applications, finding, among other things, thatalthough petitioner was incapacitated from performing his job duties, he had not established thathe was incapacitated as the result of an accident or a disability sustained in service. Respondentadopted the Hearing Officer's findings, prompting this CPLR article 78 proceeding.
We confirm. The New York State and Local Police and Fire Retirement System concedesthat petitioner is permanently incapacitated from performing the duties of a firefighter. [*2]Nonetheless, he is entitled to accidental or performance of dutydisability retirement benefits only upon "demonstrating that he was incapacitated from theperformance of duty as the natural and proximate result of an accident or disability sustained inservice" (Matter of Feeney vDiNapoli, 68 AD3d 1425, 1426 [2009]; accord Matter of Micalizzi v DiNapoli, 81 AD3d 1067, 1067[2011]). To that end, petitioner presented the reports of physician Amy Weiss-Citrome andorthopedic surgeon Douglas Fauser, who both opined that petitioner's incapacity was due tomeniscal tearing in the left knee that is causally related to the 2008 incident. Petitioner alsopresented the report of orthopedic surgeon Paul Carton, who stated that petitioner wasincapacitated due to bilateral contusion of the knees related to the 2008 incident. Citrome, Fauserand Carton also found preexisting osteoarthritis.
The Retirement System presented the report and testimony of orthopedic surgeon JeffreyDermksian, who examined petitioner and reviewed his medical records on its behalf. Dermksiandiagnosed bilateral knee pain due to severe osteoarthritis in petitioner's right knee and moderateto severe osteoarthritis in the left knee. He concluded that this condition was not causally relatedto petitioner's employment. Rather, he opined that the osteoarthritis was the result of thesurgeries performed on petitioner's right knee in 1979, both knees in 2003 and left knee in 2007,noting the findings of preexisting osteoarthritis in 2008, and petitioner's excessive weight.Inasmuch as Dermksian's opinion was rational and fact-based, we conclude that respondent'sdetermination is supported by substantial evidence and we will not disturb it (see Matter ofMicalizzi v DiNapoli, 81 AD3d at 1068; Matter of Matthews v DiNapoli, 58 AD3d1049, 1050 [2009]). In light of the foregoing, petitioner's remaining contention that the 1988incident constituted an accident for purposes of his application for accidental disabilityretirement benefits is rendered academic (see Matter of Eddie v DiNapoli, 72 AD3d 1326, 1327 [2010]).
Rose, Spain, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.