| Matter of Marello v DiNapoli |
| 2013 NY Slip Op 07542 [111 AD3d 1052] |
| November 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Robert J. Marello,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 which denied petitioner's application for performance of duty disabilityretirement benefits.
In 2001, petitioner, a correction officer, injured his right shoulder in an altercationwith an inmate. Following surgery on his shoulder, he returned to work withoutrestrictions. He injured his right shoulder again in both 2005 and 2008, when objects thathe was hanging on racks in the facility property room fell on him. In 2009, petitionerapplied for performance of duty disability retirement benefits, alleging that he waspermanently disabled due to the 2001 injury resulting from the act of an inmate. Theapplication was denied and petitioner sought a hearing and redetermination. Following ahearing, the Hearing Officer affirmed the denial of the application, concluding thatpetitioner had not satisfied his burden of establishing that his permanent disability wasthe natural and proximate result of the 2001 injury (see Retirement and SocialSecurity Law § 607-c [a]). Respondent adopted the Hearing Officer'sdetermination and this CPLR article 78 proceeding ensued.[*2]
We confirm. It is uncontroverted that petitioner ispermanently disabled from performing the duties of a correction officer. Therefore,petitioner bore the burden of demonstrating that his disability was the natural andproximate result of an act of an inmate (see Retirement and Social Security Law§ 607-c [a]; Matter ofHunt v DiNapoli, 93 AD3d 1017, 1017 [2012]). Petitioner testified that histreating physician informed him that the 2005 and 2008 incidents did not result in a newinjury, but rather aggravated the 2001 injury. Petitioner also submitted a report from aphysician who performed an independent medical examination on him and a report fromhis chiropractor. Both opined that his 2001 injury was exacerbated by the 2005 and 2008incidents. The orthopedic surgeon who examined petitioner and reviewed his medicalrecords on behalf of the New York State and Local Employees' Retirement Systemopined, however, that the 2001 injury was not the cause of petitioner's disability, citinghis return to full duty for several years following that injury, as well as preexistingosteoarthritis.
It is well settled that "[r]espondent possesses the authority to resolve conflicts in themedical evidence and to credit one expert's opinion over that of another, so long as thecredited expert articulates a rational and fact-based opinion founded upon a physicalexamination and review of the pertinent medical records" (Matter of Freund v Hevesi, 34AD3d 950, 950 [2006]). Accordingly, inasmuch as the Retirement System's expertprovided a rational and fact-based opinion based upon an examination of petitioner and areview of his medical records, respondent's determination is supported by substantialevidence and it will not be disturbed, despite evidence in the record that might support acontrary result (see Matter ofAshley v DiNapoli, 97 AD3d 1057, 1060 [2012]; Matter of Kossifos v DiNapoli,92 AD3d 1073, 1074 [2012]).
McCarthy, Spain and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.