| Matter of Cooke v DiNapoli |
| 2012 NY Slip Op 05234 [96 AD3d 1340] |
| June 28, 2012 |
| Appellate Division, Third Department |
| In the Matter of William F. Cooke, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Malone Jr., 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 accidental disability retirement benefits.
Petitioner, a police lieutenant, sustained an injury in August 2006 when his right knee strucka cement sidewalk while he was attempting to subdue a suspect. As a result of the injury,petitioner applied for accidental disability retirement benefits in August 2007. Following ahearing and the submission of medical documentation, respondent denied petitioner's applicationon the basis that he was not permanently incapacitated from performing his duties. Petitionercommenced this CPLR article 78 proceeding, and we now confirm.
An applicant seeking accidental disability retirement benefits bears the burden ofdemonstrating that he or she is permanently incapacitated from performing his or her job duties(see Matter of Capraro v DiNapoli,91 AD3d 1020, 1021 [2012]; Matter of Kutzma v New York State Comptroller, 90 AD3d 1291,1291 [2011]). The resolution of conflicting medical opinions and credibility assessments arewithin the authority of respondent (seeMatter of Mazzei v [*2]DiNapoli, 90 AD3d 1458, 1459[2011]; Matter of O'Connor vDiNapoli, 89 AD3d 1367, 1368 [2011]). Here, respondent relied upon the reports of aboard-certified orthopedist, who performed an independent medical examination, reviewedpetitioner's records and opined that he was not permanently disabled. Notably, althoughpetitioner submitted medical evidence that he was presently unable to perform his job duties, hesubmitted no definitive opinion that he was permanently incapacitated. As such, we findrespondent's determination supported by substantial evidence (see Matter of Mazzei vDiNapoli, 90 AD3d at 1459; Matter of O'Connor v DiNapoli, 89 AD3d at 1368).
Peters, P.J., Spain, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.