| Matter of Space v DiNapoli |
| 2012 NY Slip Op 04818 [96 AD3d 1226] |
| June 14, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Maureen J. Space,Petitioner, v Thomas DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Lahtinen, 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 applications for performance of duty and accidental disabilityretirement benefits.
In 1998, while separated from her position as a police officer, petitioner was involved in amotorcycle accident fracturing her right femur and patella and requiring the insertion of a steelrod in her leg. Petitioner was reinstated to her position as a police officer in 2001 and, in 2005,applied for performance of duty and accidental disability retirement benefits based upon, as isrelevant herein, an injury to her right knee sustained in a work-related February 2003 accident.Following two hearings and a recommendation by the second Hearing Officer that petitioner'sapplications be granted, respondent Comptroller ultimately denied the applications finding that,although petitioner was permanently incapacitated from the performance of her duties, she failedto meet her burden of proving that such disability was due to the natural and proximate result ofan accident or incident sustained in service. This CPLR article 78 proceeding ensued.[*2]
We confirm. The Comptroller relied on the 2008 medicalopinion of John Mazella, a board-certified orthopedic surgeon who twice examined petitioner onbehalf of respondent New York State and Local Police and Fire Retirement System. In 2006,Mazella found, among other things, that the February 2003 accident was the competentproducing cause of petitioner's present condition, but that petitioner was not permanentlydisabled. In 2008, Mazella was provided with additional medical documents, including a 2007MRI of petitioner's right knee reflecting osteoarthritis and degenerative changes, and reexaminedpetitioner. As a result, he revised his 2006 opinion and concluded that, while the February 2003accident resulted in a contusion of the right knee and a temporary aggravation of her preexistingknee condition, the competent producing cause of petitioner's disabling osteoarthritic conditionof the right knee resulted from the 1998 motorcycle accident, with the malrotation of her femurand obesity being significant contributory factors. Mazella's "rational and fact-based [2008]opinion founded upon a physical examination and review of the pertinent medical records"provides substantial evidence to support the Comptroller's determination (Matter of Freund v Hevesi, 34 AD3d950, 950 [2006]; see Matter ofKossifos v DiNapoli, 92 AD3d 1073, 1074 [2012]; Matter of Murray v DiNapoli, 79 AD3d 1412, 1414 [2010]).Petitioner's remaining contention regarding a concession made by the Retirement System at thefirst hearing has been reviewed and found to be without merit.
Peters, P.J., Spain, Kavanagh and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.