| Matter of Cantelmo v New York State Comptroller |
| 2013 NY Slip Op 02812 [105 AD3d 1306] |
| April 25, 2013 |
| Appellate Division, Third Department |
| In the Matter of Raymond Cantelmo, Petitioner, v NewYork State Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondents.
Peters, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination ofrespondent Comptroller which denied petitioner's applications for performance of dutyand accidental disability retirement benefits.
In 2007, petitioner, a police officer for the Port Authority of New York and NewJersey, applied for performance of duty, accidental disability and World Trade Centeraccidental disability retirement benefits. Respondent Comptroller denied the applications,concluding that petitioner was not permanently disabled from performing his workduties. Petitioner commenced this CPLR article 78 proceeding challenging thatdetermination.
We confirm. "As an applicant for accidental and performance of duty disabilityretirement benefits, petitioner bore the burden of proving that he is permanentlyincapacitated from performing his job duties" (Matter of Girsh v DiNapoli, 79 AD3d 1444, 1444 [2010][internal quotation marks and citations omitted]; accord Matter of Camera v DiNapoli, 92 AD3d 1019, 1020[2012]). Petitioner presented the written reports and testimony of his treating psychiatristand a clinical social worker, who both began treating petitioner in 2006. Both diagnosedpetitioner as suffering from posttraumatic stress disorder delayed onset due to his [*2]experiences related to the September 11, 2001 terroristattacks at the World Trade Center. Based upon this diagnosis, both witnesses concludedthat petitioner was permanently disabled from performing his job duties. Petitioner alsopresented a written report from a police psychotherapist, who similarly diagnosedpetitioner as suffering from posttraumatic stress disorder delayed onset and found him tobe permanently incapacitated.
In contrast, respondent New York State and Local Police and Fire Retirement Systempresented the written report and testimony of a psychiatrist who performed anindependent psychiatric evaluation of petitioner and reviewed his medical records on itsbehalf. The psychiatrist diagnosed petitioner with "major depressive disorder, singleepisode, mild, without psychotic features." Based upon this diagnosis, which heconsidered treatable, he concluded that petitioner was not permanently disabled fromperforming his job duties.
"In situations where, like here, there are conflicting opinions as to whether petitioneris permanently disabled, it is well settled that [the Comptroller] is vested with theauthority to resolve conflicts in the medical evidence and to credit one expert's opinionover that of another" (Matter ofBrady v DiNapoli, 77 AD3d 1041, 1042 [2010] [internal quotation marks andcitations omitted]; see Matter ofWeeks v New York State Comptroller, 68 AD3d 1427, 1428 [2009]). Inasmuchas the Retirement System's expert provided a rational and fact-based opinion, foundedupon an examination of petitioner and a review of his medical records, the Comptroller'sdetermination is supported by substantial evidence and will not be disturbed, despiteevidence in the record that might support a contrary result (see Matter of Kossifos vDiNapoli, 92 AD3d 1073, 1074 [2012]; Matter of O'Connor v DiNapoli, 89 AD3d 1367, 1368[2011]).
Stein, Spain and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.