| Matter of Ferguson v DiNapoli |
| 2014 NY Slip Op 00923 [114 AD3d 1015] |
| February 13, 2014 |
| Appellate Division, Third Department |
| In the Matter of Reginald Ferguson,Petitioner, v Thomas P. DiNapoli, as New York State Comptroller, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's application for performance of duty disabilityretirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirementbenefits based on, among other things, heart disease and back, arm and leg injuries. Hisapplication was initially denied, prompting petitioner to seek a hearing andredetermination. Following the hearing, the Hearing Officer upheld the denial,concluding that petitioner's heart disease was not caused by his employment, his arm andleg injuries were not sustained as the result of an inmate act and he was not disabled bythe claimed back injuries. Respondent Comptroller accepted the Hearing Officer'sdetermination and this CPLR article 78 proceeding ensued.
We confirm. With regard to petitioner's heart disease, respondents concede thatpetitioner is entitled to the statutory presumption that his disability associated with thiscondition was incurred in the performance of his duties as a correction officer and thatrespondent New [*2]York State and Local RetirementSystem was obligated to rebut the presumption with competent medical evidence(see Retirement and Social Security Law § 507-b [c]; Matter of Saddlemire vDiNapoli, 84 AD3d 1692, 1693 [2011]; Matter of Walters v DiNapoli, 82 AD3d 1487, 1487[2011]). Cardiologist David Dean, who examined petitioner on behalf of the RetirementSystem, concluded that he was not disabled by heart disease and, further, that petitioner'sheart disease was related to various risk factors, including elevated cholesterol and familyhistory, and was not caused by his employment. The foregoing constituted competentevidence rebutting the statutory presumption and, inasmuch as resolution of conflictingmedical evidence is left to the Comptroller, it also provides substantial evidencesupporting the Comptroller's determination that petitioner is not entitled to disabilityretirement benefits on this basis (see Matter of Baron v New York State Comptroller, 84 AD3d1678, 1679 [2011]; Matter of Saddlemire v DiNapoli, 84 AD3d at 1693; Matter of Rivera v DiNapoli,78 AD3d 1295, 1296 [2010]).
With regard to petitioner's arm and leg injuries, sustained when he fell down a set ofstairs in 2006, petitioner was required to establish that his injuries were "caused by directinteraction with an inmate" (Matter of Koziuk v New York State Comptroller, 78 AD3d1458, 1459 [2010] [internal quotations marks and citation omitted]; seeRetirement and Social Security Law § 507-b [a]). Inasmuch as the record containsinconsistencies regarding the circumstances of petitioner's fall and the Comptroller isvested with authority to resolve such inconsistencies, we find that the Comptroller'sdetermination that these injuries were not the direct result of an act of an inmate issupported by substantial evidence (see Matter of Stimmer v DiNapoli, 98 AD3d 1216, 1217[2012]; Matter of Koziuk v New York State Comptroller, 78 AD3d at 1459).Finally, the record does not reflect that petitioner is permanently incapacitated from theperformance of his job duties as the result of a back injury sustained in incidentsidentified by him (see Matter ofCooke v DiNapoli, 96 AD3d 1340, 1341 [2012]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.