| Matter of Chomicki v Nitido |
| 2016 NY Slip Op 08577 [145 AD3d 1337] |
| December 22, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Robert Chomicki, Petitioner, v ThomasNitido, as Deputy State Comptroller, Respondent. |
Baker, Leshko, Saline & Blosser, LLP, White Plains (Anthony C. Saline ofcounsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel),for respondent.
Lynch, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof the Supreme Court, entered in Albany County) to review a determination of theComptroller denying petitioner's application for accidental disability retirementbenefits.
Petitioner retired from his employment as a police officer for the City of Yonkers inJanuary 2010 based upon his years of service. In September 2010, petitioner applied foraccidental disability retirement benefits and performance of duty disability retirementbenefits, alleging that he was permanently incapacitated from the performance of hisduties as a result of injuries to his neck and shoulder sustained in three accidents thatoccurred in June 1988, April 1996 and June 1996. Although petitioner's application forperformance of duty disability benefits was granted, his application for accidentaldisability retirement benefits was denied. Following a hearing, at which it was concededthat the three incidents were accidents and that petitioner was incapacitated from theperformance of his duties, the Hearing Officer denied the accidental disability retirementapplication on the basis that the accidents were not the proximate cause of his disability.The Comptroller affirmed that determination and this CPLR article 78 proceedingensued.
[*2] We confirm. "[T]o be eligible foraccidental disability retirement benefits, petitioner's incapacitation must be the naturaland proximate result of an accident sustained while in service" (Matter of Whipple v New YorkState & Local Retirement Sys., 126 AD3d 1282, 1283 [2015] [internalquotation marks and citations omitted], lv denied 26 NY3d 912 [2015]). "Where,as here, there is conflicting medical evidence, the Comptroller is authorized to resolvethe conflicts and to credit one expert's opinion over that of another so long as the creditedexpert articulates a rational and fact-based opinion founded upon a physical examinationand review of the pertinent medical records" (Matter of Pufahl v Murray, 111 AD3d 1050, 1051 [2013][internal quotation marks and citation omitted]; see Matter of Ortiz v DiNapoli, 98 AD3d 1224, 1225[2012]).
Here, the Comptroller credited the medical report and testimony of John Mazella, anorthopedic surgeon who examined petitioner and reviewed his medical records and workhistory. Mazella opined that petitioner's disability was not the proximate result of oneincident but was a combination of degenerative changes due to daily living andwork-related activities. With regard to the three specific accidents, Mazella concludedthat petitioner suffered no significant trauma from the accidents given that none of theaccidents resulted in petitioner being hospitalized nor did they result in petitioner losingany significant time from work. Furthermore, petitioner continued on full-dutyassignment for over 13 years following the last accident and did not seek any orthopedictreatment until after he retired. Although there was medical testimony that could supporta contrary conclusion, Mazella's rational and fact-based medical opinion based upon hisexamination of petitioner and review of petitioner's medical records and work historyprovide substantial evidence to support the Comptroller's determination and, therefore, itwill not be disturbed (see Matter of Whipple v New York State & LocalRetirement Sys., 126 AD3d at 1283; Matter of Pufahl v Murray, 111 AD3d at1051-1052; Matter of Ashley vDiNapoli, 97 AD3d 1057, 1059 [2012]). We have reviewed petitioner'sremaining contentions, including that the denial of accidental disability retirementbenefits is inconsistent with the fact that he was granted performance of duty disabilityretirement benefits, and find them to be without merit.
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.