| Matter of Quintana v City of Buffalo |
| 2014 NY Slip Op 00846 [114 AD3d 1222] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| In the Matter of Robert Quintana, Petitioner, v City ofBuffalo, Respondent. |
—[*1] Timothy A. Ball, Corporation Counsel, Buffalo (Mary B. Scarpine of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, ErieCounty [Patrick H. NeMoyer, J.], entered Apr. 15, 2013) to annul a determinationfinding that petitioner was capable of returning to his employment as a police officer in alight-duty capacity.
It is hereby ordered that the determination is unanimously confirmed without costsand the amended petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking toannul the determination, following a hearing, that he is capable of returning to work in alight-duty capacity. Petitioner had been receiving benefits pursuant to General MunicipalLaw § 207-c as a result of injuries that he received in the course of his work as apolice officer. After receipt of an independent medical examination (IME) reportindicating that petitioner was able to return to work in a light-duty capacity, respondentassigned petitioner to work as a camera monitor in the police video surveillance room.
We note at the outset Supreme Court should have transferred the entire proceeding tothis Court, rather than first disposing of certain contentions of petitioner. The amendedpetition raises a substantial evidence question, and the remaining points made bypetitioner are not objections that could have terminated the proceeding within themeaning of CPLR 7804 (g) (seeMatter of Putnam Cos. v Shah, 93 AD3d 1315, 1316 [2012], lv denied19 NY3d 811 [2012]; Matter of Wynne v Town of Ramapo, 286 AD2d 338,339 [2001]). Nonetheless, because the record is now before us, we will "treat theproceeding as if it had been properly transferred here in its entirety" (Wynne, 286AD2d at 339), and review petitioner's contentions de novo (see Putnam Cos., 93AD3d at 1316; Matter ofBrunner v Bertoni, 91 AD3d 1100, 1102 n [2012]).
It is well established that "the scope of [a] CPLR article 78 proceeding, following anadministrative hearing, is limited to review of the issues raised and addressed in thathearing" (Matter of Cummingsv New York State Dept. of Motor Vehs., 87 AD3d 1347, 1348 [2011] [internalquotation marks omitted]; see Matter of Vicari v Wing, 244 AD2d 974, 976[1997]). Thus, " '[a] petitioner may not raise a new claim in a proceeding pursuant toCPLR article 78 that was not [*2]raised in theadministrative hearing under review' " (Matter of Stoughtenger v Carrion, 72 AD3d 1484, 1486[2010]). Here, petitioner raises several contentions for the first time in his amendedpetition, including that the hearing violated his due process rights, and, therefore, thosecontentions are not properly before us (see Matter of Molinsky v New York State Dept. of MotorVehs., 105 AD3d 960, 960-961 [2013]; Stoughtenger, 72 AD3d at1486; Matter of Mugalli v New York State Liq. Auth., 256 AD2d 1116, 1116[1998]).
With respect to petitioner's remaining contentions, we conclude that the HearingOfficer's determination that petitioner was able to return to work in a light-duty capacityis supported by substantial evidence (see Matter of Clouse v Allegany County, 46 AD3d 1381,1381-1382 [2007]; Matter of Chadha v County of Nassau, 248 AD2d 465, 466[1998]; Matter of Flynn v Pease, 242 AD2d 331, 331-332 [1997]). "Substantialevidence 'means such relevant proof as a reasonable mind may accept as adequate tosupport a conclusion or ultimate fact' " (Rainer N. Mittl, Ophthalmologist, P.C. vNew York State Div. of Human Rights, 100 NY2d 326, 331 [2003], quoting 300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Lundy v City ofOswego, 59 AD3d 954, 955 [2009]). "A reviewing court in passing upon thisquestion of law may not substitute its own judgment of the evidence for that of theadministrative agency, but should review the whole record to determine whether thereexists a rational basis to support the findings upon which the agency's determination ispredicated" (Matter of Purdy v Kreisberg, 47 NY2d 354, 358 [1979]; seeChadha, 248 AD2d at 466-467).
Here, there is ample evidence in the record, including expert medical testimony,petitioner's medical records, and several IME reports, to support the Hearing Officer'sdetermination that petitioner was fit to return to work on a light-duty basis (seeChadha, 248 AD2d at 466; Flynn, 242 AD2d at 332). Although petitioner'sprimary care physician stated that petitioner was totally disabled and unable to return towork in any capacity, his progress notes contain no basis for that opinion aside frompetitioner's subjective complaints of pain, and he acknowledged that petitioner had notrouble with activities of daily living, including bathing, communicating, dressing,eating, grooming, or driving. In any event, "[t]he Hearing Officer was entitled to weighthe parties' conflicting medical evidence and to assess the credibility of the witnesses,and '[w]e may not weigh the evidence or reject [the Hearing Officer's] choice where theevidence is conflicting and room for a choice exists' " (Clouse, 46 AD3d at 1382,quoting Matter of CUNY-Hostos Community Coll. v State Human Rights AppealBd., 59 NY2d 69, 75 [1983]; see Matter of Hill v New York State & LocalRetirement Sys., 295 AD2d 802, 802-803 [2002]).
Contrary to the contention of petitioner, the record reflects that both respondent'sexpert and the Hearing Officer considered the specific duties of a camera monitor andpetitioner's ability to perform those duties. The police captain who oversees thesurveillance room testified in detail about the duties of a camera monitor, the cameramonitor job description was received in evidence at the hearing, and the Hearing Officerconducted a site visit to the surveillance room. With respect to petitioner's contention thatthe Hearing Officer failed to consider the impact of petitioner's medications on his abilityto perform the duties of a camera monitor, we note that petitioner submitted no evidenceat the hearing that his medications rendered him unable to perform the position at issue(see Flynn, 242 AD2d at 332). Although respondent's expert testified that two ofpetitioner's medications could potentially affect alertness, he further testified thatpetitioner had been taking those medications for so long that he did not expect anyproblems with petitioner's ability to perform the duties of a camera monitor (seegenerally id. at 331-332). Present—Centra, J.P., Peradotto, Carni, Lindley andValentino, JJ.