| Matter of Miserendino v City of Mount Vernon |
| 2012 NY Slip Op 05004 [96 AD3d 946] |
| June 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Roy Miserendino, Petitioner, v City ofMount Vernon et al., Respondents. |
—[*1] Coughlin & Gerhart, LLP, Binghamton, N.Y. (Keith A. O'Hara of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Fire Commissionerof the respondent City of Mount Vernon Fire Department dated August 10, 2010, which adoptedthe recommendation of a hearing officer dated July 17, 2010, made after a hearing, denying thepetitioner's application for benefits pursuant to General Municipal Law § 207-a (2).
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
The petitioner was employed by the City of Mount Vernon Fire Department (hereinafter theCity) from 1975 until 2006, when he was awarded accidental disability retirement benefits by theNew York State Comptroller. Over the course of his employment, the petitioner sustained anumber of on-the-job injuries. After each injury, he returned to work in full capacity. Thepetitioner alleges that he sustained his last on-the-job injury in October 2002, when he slippedand fell on a cement ramp and injured his lower back and left shoulder. The petitioner wasawarded salary benefits pursuant to General Municipal Law § 207-a (1). After receivingdisability retirement benefits, the petitioner applied for supplemental income benefits pursuant toGeneral Municipal Law § 207-a (2) to cover the difference between his salary and thedisability retirement benefits until he reached the mandatory service retirement age.
The City denied the application on the basis that the petitioner's disability was not connectedto his on-the-job injury. The petitioner requested a hearing, and the hearing officer found crediblethe testimony of the City's expert, Dr. Warren Silverman, and recommended denial of benefitsbecause the petitioner's restrictions were not caused by a work-related injury, and he was notpermanently disabled. The City accepted the recommendation, and the petitioner commenced thisproceeding pursuant to CPLR article 78 to review the City's determination denying him benefitspursuant to General Municipal Law § 207-a (2).
Judicial review of an administrative determination made after a hearing required by [*2]law is limited to whether the determination is supported bysubstantial evidence (see CPLR 7803 [4]; 300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d 176 [1978]; Matter of Cardenas v Board of Educ. of YonkersCity School Dist., 298 AD2d 390 [2002]). Substantial evidence means more than a "merescintilla of evidence" (Matter of Stork Rest. v Boland, 282 NY 256, 273-274 [1940]), and"means such relevant proof as a reasonable mind may accept as adequate to support a conclusionor ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d at180).
When there is conflicting evidence or different inferences may be drawn, "the duty ofweighing the evidence and making the choice rests solely upon the [administrative agency]. Thecourts may not weigh the evidence or reject the choice made by [such agency] where theevidence is conflicting and room for choice exists" (Matter of Berenhaus v Ward, 70NY2d 436, 443-444 [1987] [internal quotation marks omitted]; see Matter of Hildreth v New York StateDept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]). Moreover, where thereis conflicting expert testimony, in making a General Municipal Law § 207-a determination,a municipality is "free to credit one physician's testimony over that of another" (Matter ofBernhard v Hartsdale Fire Dist., 226 AD2d 715, 716 [1996]; see Matter of Segura v Cityof Long Beach, 230 AD2d 799 [1996]; Matter of Flynn v Zaleski, 212 AD2d 706,708 [1995]). Thus, even if "conflicting medical evidence can be found in the record," themunicipality's determination, based on its own expert's conclusions, may still be supported bysubstantial evidence (Matter of Bernhard v Hartsdale Fire Dist., 226 AD2d at 717).
Here, the hearing officer's determination is supported by substantial evidence. Contrary to thepetitioner's assertions, the testimony of the City's expert, Dr. Silverman, was consistent andsupported by the medical evidence, and the hearing officer was free to credit Dr. Silverman'stestimony more than the testimony of the petitioner's treating physician (see Texter v Middletown Dialysis Ctr.,Inc., 22 AD3d 831, 831 [2005]; Matter of Bernhard v Hartsdale Fire Dist., 226AD2d at 716-717). Additionally, a review of the evidence and hearing transcripts shows that thehearing officer did not misconstrue the evidence, and gave proper weight and consideration to thepetitioner's medical records, the testimony of the petitioner's treating physician, and the findingsof the petitioner's other physicians.
The petitioner also incorrectly argues that the hearing officer should have considered thepetitioner's receipt of disability retirement and Social Security disability benefits. TheComptroller's decision awarding disability retirement benefits is not binding on a municipality ina separate proceeding to determine the petitioner's eligibility for benefits under GeneralMunicipal Law § 207-a (2) (see Matter of Cook v City of Utica, 88 NY2d 833, 835[1996]; Matter of Solano v City ofMount Vernon, 49 AD3d 762, 764 [2008]; see also Matter of D'Onofrio v City ofMount Vernon, 226 AD2d 719, 720 [1996]). Moreover, Social Security disability benefitsare different from benefits afforded under General Municipal Law § 207-a, as the formeroperates as a federal insurance program that provides benefits to every individual who is disabledwithin the meaning of the program (seeMatter of McCaffrey v Town of E. Fishkill, 42 AD3d 22, 25 [2007]). On the other hand,General Municipal Law § 207-a requires a claimant to show that his or her injury or illnessresults from the performance of his or her duties and that he or she is physically unable toperform his or her regular duties as a firefighter (see Matter of Bernhard v Hartsdale FireDist., 226 AD2d at 716). As the petitioner could qualify for Social Security disabilitybenefits even if he did not suffer from a work-related disability within the meaning of GeneralMunicipal Law § 207-a, the hearing officer need not have considered the petitioner'sreceipt of Social Security disability benefits in making a determination regarding GeneralMunicipal Law § 207-a (2) eligibility.
The petitioner's remaining contentions are without merit. Dillon, J.P., Leventhal, Belen andLott, JJ., concur.