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In the Matter of Paul Brunner v. John Bertoni

State of New York Supreme Court, Appellate Division Third Judicial Department


January 12, 2012

IN THE MATTER OF PAUL BRUNNER, APPELLANT,
v.
JOHN BERTONI, AS MAYOR OF THE VILLAGE OF ENDICOTT, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Lebous, J.), entered October 29, 2010 in Broome County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Mayor of the Village of Endicott denying petitioner's request for General Municipal Law § 207-c benefits.

The opinion of the court was delivered by: Mercure, Acting P.J.

MEMORANDUM AND ORDER

Calendar Date: November 14, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.

Petitioner, a police officer, sustained serious injuries in a 2008 off-duty motorcycle accident, including a dislocated left thumb joint that required surgery to correct. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot with his right hand.

Petitioner applied for benefits pursuant to General Municipal Law § 207-c, and the police chief denied his application. A Hearing Officer thereafter recommended that the benefits be granted. Respondent John Bertoni, the Mayor of the Village of Endicott, disagreed and denied the application, prompting this CPLR article 78 proceeding. Supreme Court dismissed the petition, and petitioner appeals.*fn1

We affirm. General Municipal Law § 207-c provides police officers such as petitioner "with benefits, including full wages, where they are injured 'in the performance of [their] duties'" (Matter of Martino v County of Albany, 47 AD3d 1052, 1052 [2008], quoting General Municipal Law § 207-c [1]). To demonstrate entitlement to those benefits, petitioner must "prove a direct causal relationship between job duties and the resulting illness or injury" (Matter of White v County of Cortland, 97 NY2d 336, 340 [2002]; accord Matter of Theroux v Reilly, 1 NY3d 232, 244 [2003]). In our view, while "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if petitioner's] job duties were a direct cause of the disability," substantial evidence in the record amply supports Bertoni's finding that they were not a direct cause (Matter of White v County of Cortland, 97 NY2d at 340).

In that regard, orthopedic surgeon Charles Totero conducted an independent medical examination of petitioner and opined that he was not injured during the firearms training. Although discharging his firearm caused petitioner discomfort, the pain stopped when he ceased fire, and Totero indicated that the pain was caused by arthritis stemming solely from the prior thumb injury (see e.g. Matter of Steinmann v Hevesi, 18 AD3d 1011, 1012 [2005], lv denied 5 NY3d 710 [2005]). Bertoni was free to credit Totero's opinion and, inasmuch as "mere fortuity of timing does not entitle an employee to benefits under General Municipal Law § 207-c" in the absence of a causal connection between petitioner's duties and the disability, the application was properly denied (Matter of Greenewald v County of Schenectady, 85 NY2d 527, 534 [1995]; see Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]; cf. Matter of Schmidt v Putnam County Off. of Sheriff, 49 AD3d 761 [2008]).

Petitioner's remaining arguments have been considered and found to be without merit.

Rose, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court


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