| Matter of Steinberg v DiNapoli |
| 2012 NY Slip Op 02153 [93 AD3d 1068] |
| March 22, 2012 |
| Appellate Division, Third Department |
| In the Matter of David S. Steinberg, Petitioner, v ThomasP. 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 application for performance of duty disability retirement benefits.
In July 2007, petitioner, a former correction officer with the Westchester County Departmentof Corrections, filed an application for performance of duty disability retirement benefits,claiming that he was permanently disabled as a result of lower back injuries sustained during aNovember 2006 altercation with a prison inmate. Although the New York State and LocalRetirement System found that petitioner was permanently incapacitated from the performance ofhis duties, it nonetheless denied his application upon the ground that his disability was not thenatural and proximate result of an incident sustained in service. Consequently, petitioner sought ahearing and redetermination, following which a Hearing Officer again denied his application.Respondent, adding only a supplemental conclusion of law, adopted the Hearing Officer'sfindings, and petitioner subsequently commenced this CPLR article 78 proceeding.[*2]
We confirm. "In order to be entitled to performance ofduty disability retirement benefits, petitioner bore the burden of demonstrating that he wasincapacitated from the performance of duty as the natural and proximate result of [a]. . . disability sustained in service" (Matter of Monachelli v DiNapoli, 84 AD3d 1687, 1688 [2011],lv denied 18 NY3d 802 [2011] [internal quotation marks and citations omitted]). While,among other things, the medical report from one of petitioner's physicians indicated thatpetitioner's permanent disability stemmed largely from the November 2006 incident, respondentrelied upon the contrary conclusions contained in the reports from John Mazella, theboard-certified orthopedic surgeon who examined petitioner on behalf of the Retirement System.Specifically, Mazella, noting petitioner's lengthy history of chronic low back pain and injuriesprior to the November 2006 incident, concluded that the disabling condition was caused by thecumulative effect of those injuries. Since proof in the record showed that petitioner performedthe same restricted full-time duties both before and after the November 2006 incident up until hisretirement in January 2008, Mazella opined that the November 2006 incident resulted only in atemporary exacerbation of his prior injuries and was not the cause of the permanent disablement.
Notably, "the Comptroller has the authority to resolve conflicts in medical opinion and. . . credit the testimony of one expert over that of another" (Matter of Harko v New York StateComptroller, 46 AD3d 1185, 1187 [2007] [internal quotation marks and citationomitted]). Inasmuch as the record contains substantial evidence supporting respondent'sdetermination on the issue of causation, we find no basis to disturb it regardless of the existenceof proof that might support a different result (see Matter of McAuliffe v DiNapoli, 83 AD3d 1366, 1366 [2011];Matter of Feeney v DiNapoli, 68AD3d 1425, 1426 [2009]).
Given this conclusion, it is unnecessary to address the challenge to respondent's additionalfinding that petitioner's disability did not arise out of the performance of his job duties becausehis restricted duties barred the type of hands-on contact with inmates that he claimed resulted in adisabling injury herein.
Peters, J.P., Rose, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.