| Matter of Carroll v DiNapoli |
| 2012 NY Slip Op 03708 [95 AD3d 1498] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Padraig J. Carroll,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondents.
Peters, P.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 began working in 1994 as a police officer for the Port Authority of New York andNew Jersey. In the course of his employment, he was involved in incidents in July 1995,February 1996 and March 2001 that resulted in physical injuries. Petitioner stopped working inJanuary 2005 and, shortly thereafter, filed an application for accidental disability retirementbased, in part, upon his work-related orthopedic injuries. In addition, petitioner claimed, asrelevant here, a psychological disability related to his assignment to assist with the search andrescue operations at the World Trade Center (hereinafter WTC) site during the months followingSeptember 11, 2001. Following a hearing, the Hearing Officer found that the 1995, 1996 andMarch 2001 incidents did not constitute accidents within the purview of Retirement and SocialSecurity Law § 363 and, further, that petitioner had not demonstrated that he waspermanently disabled due to a psychological condition. Respondent Comptroller concurred withthose conclusions and denied benefits. Petitioner then commenced this CPLR article 78proceeding, [*2]and we now annul.
First addressing petitioner's orthopedic disabilities, to be eligible for accidental disabilityretirement benefits, the disabilities must result from " 'a sudden, fortuitous, out of the ordinaryand unexpected event that does not result from an activity undertaken in the performance ofregular or routine employment duties,' " and the Comptroller has the exclusive authority todetermine whether an accident occurred (Matter of Rykala v New York State Comptroller, 92 AD3d 1077,1078 [2012], quoting Matter of Welsh vNew York State Comptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d706 [2010]). Here, with respect to the 1995 and 1996 incidents, petitioner sustained his injurieswhile struggling to remove disorderly people from the bus terminal, which petitioner stated waspart of his job on a "daily basis." With regard to the March 2001 incident, while responding to afire in the WTC, petitioner fell while hurrying up an escalator and then, while exiting thebuilding, fell again when he tripped over fire hoses. Inasmuch as petitioner was trained andrequired to respond to structure fires as part of his job, we find that substantial evidence supportsthe Comptroller's determination that the 1995, 1996 and March 2001 incidents were notaccidents (see Matter of Rykala v New York State Comptroller, 92 AD3d at 1078; Matter of Held v DiNapoli, 82 AD3d1444, 1445 [2011]; Matter ofPurcell v DiNapoli, 81 AD3d 1069, 1070 [2011]).
We reach a different conclusion, however, with regard to the Comptroller's determination asit relates to petitioner's psychological disability. We disagree with the Comptroller that petitionerfailed to carry his burden of establishing that he was permanently incapacitated from performinghis job duties (see Matter of Capraro vDiNapoli, 91 AD3d 1020, 1021 [2012]; Matter of Byrne v DiNapoli, 85 AD3d 1530, 1531 [2011]).Petitioner presented medical reports from his treating psychologist that diagnosed him withposttraumatic stress disorder and stated that he was permanently incapacitated and unable toreturn to his career as a police officer. In contrast, respondent New York State and Local Policeand Fire Retirement System presented the report of Steven Fayer, a psychiatrist who performedan independent psychiatric evaluation on petitioner and examined his medical records. Fayerfound that, while petitioner was presently disabled and unable to perform his duties, he couldmake no determination with regard to whether petitioner was permanently disabled without afollow-up examination, which never took place. While it is unquestionably within the provinceof the Comptroller to resolve conflicting medical evidence, on this record we find no evidence torebut the opinion of petitioner's expert that he was permanently incapacitated and, thus, theComptroller's decision to the contrary was not supported by substantial evidence (see generally Matter of Danieu vDiNapoli, 77 AD3d 1152, 1154-1155 [2010]; Matter of King v DiNapoli, 75 AD3d 793, 794-796 [2010]).
Accordingly, and inasmuch as petitioner is entitled to the WTC presumption establishingeligibility for benefits pursuant to Retirement and Social Security Law § 363 (g) (1) (a), weremit to the Comptroller for further hearings and a de novo determination as to whether theRetirement System met its burden of proving that petitioner is not entitled to benefits (see e.g. Matter of Macri v Kelly, 92AD3d 53, 59-60 [2011], lv granted 18 NY3d 810 [Apr. 3, 2012]; Matter of Maldonado v Kelly, 86AD3d 516, 519 [2011], lv granted 18 NY3d 808 [2012]).
Mercure, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent Comptroller for further proceedingsnot inconsistent with this Court's decision.