State of New York Supreme Court, Appellate Division Third Judicial Department
June 30, 2011
IN THE MATTER OF LISA PANTINA-BOTT, PETITIONER,
NEW YORK STATE COMPTROLLER ET AL., RESPONDENTS.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for performance of duty disability retirement benefits.
The opinion of the court was delivered by: Rose, J.
MEMORANDUM AND JUDGMENT
Calendar Date: June 1, 2011
Before: Peters, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ.
Petitioner injured her neck, back and right shoulder in two separate incidents while employed as a police officer. Petitioner's application for performance of duty disability retirement benefits was initially denied. Following a hearing, the Hearing Officer found that petitioner was not permanently incapacitated from the performance of her duties as a police officer and denied her application. Upon review, respondent Comptroller affirmed, prompting this proceeding.
Petitioner bore the burden of establishing that she is permanently incapacitated from the performance of her duties as a police officer (see Matter of Cuttino v New York State Comptroller, 80 AD3d 1067, 1067 ; Matter of Cavalieri v New York State & Local Retirement Sys., 53 AD3d 906, 907 ). In support of her claim, petitioner offered the testimony of both her treating neurologist and her treating orthopedist. Respondent New York State and Local Employees' Retirement System submitted the reports of orthopedist Leon Sultan who examined petitioner twice, reviewed her relevant medical records and reviewed surveillance videos of petitioner. In reaching his conclusion that petitioner is not disabled, Sultan noted that petitioner's subjective complaints were not confirmed by objective clinical tests. Notably, the record also contains the reports of two other experts, an orthopedist and a neurologist, who concluded that petitioner is not disabled.
Considering the record as a whole and bearing in mind that the Comptroller is vested with exclusive authority to weigh the medical evidence and credit the opinion of one expert over another, we find that substantial evidence supports the decision (see Matter of Cavalieri v New York State & Local Retirement Sys., 53 AD3d at 907; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 ). Inasmuch as petitioner did not timely object to the admission of Sultan's reports, her challenges to their hearsay nature, Sultan's credentials and her inability to cross-examine him are unavailing (see Matter of Cuttino v New York State Comptroller, 80 AD3d at 1068; Matter of Fochi v New York State Comptroller, 78 AD3d 1460, 1461 , lv denied 16 NY3d 707 ). We have considered petitioner's remaining contentions and find them to be without merit.
Peters, J.P., Lahtinen, Malone Jr. and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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