State of New York Supreme Court, Appellate Division Third Judicial Department
February 2, 2012
IN THE MATTER OF FRANCIS A. DELLA CAMERA, PETITIONER,
THOMAS P. DINAPOLI, AS STATE COMPTROLLER, RESPONDENT.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND JUDGMENT
Calendar Date: January 6, 2012
Before: Mercure, Acting P.J., Spain, Kavanagh, Stein and Egan Jr., JJ.
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 which denied petitioner's applications for accidental and performance of duty disability retirement benefits.
Petitioner, a police officer, applied for accidental and performance of duty disability retirement benefits, claiming that he was permanently incapacitated from performing his job duties as the result of injuries sustained in several work-related incidents. The applications were initially denied and petitioner sought a hearing and a redetermination. Following a hearing, the Hearing Officer denied the applications, finding, among other things, that petitioner was not permanently incapacitated from performing his job duties. Respondent adopted that determination with supplemental conclusions of law, prompting this CPLR article 78 proceeding.
We confirm. "As an applicant for accidental and performance of duty disability retirement benefits, petitioner bore the burden of proving that he is permanently incapacitated from performing his job duties" (Matter of Girsh v DiNapoli, 79 AD3d 1444, 1444  [internal quotation marks and citations omitted]; accord Matter of Wilkinson v DiNapoli, 86 AD3d 851, 852 ). To that end, petitioner submitted the medical reports of various treating physicians, in which they opined that petitioner was either partially or totally disabled at the time of their examination. None of these physicians, however, opined as to whether petitioner's disability was permanent. In contrast, the New York State and Local Retirement System submitted the report of physician John Mazella, who examined petitioner on its behalf. Based upon his examination of petitioner and review of his pertinent medical records, Mazella found both cervical and lumbar strains and concluded that petitioner "is not permanently disabled and is able to perform all the duties of the position of police officer."
Under circumstances such as these, where conflicting medical evidence is presented, "respondent is vested with the authority to resolve such conflict and to credit the opinion of one expert over that of another" (Matter of Hall v McCall, 2 AD3d 1026, 1026-1027 ; accord Matter of Salik v New York State & Local Employees' Retirement Sys., 69 AD3d 1029, 1030 ). Here, the expert opinion credited by respondent was rational, fact-based and made following a physical examination of petitioner and a review of his medical records. Accordingly, respondent's determination is supported by substantial evidence and it will not be disturbed (see Matter of Meluch v New York State & Local Police & Fire Retirement Sys., 80 AD3d 976, 977 ; Matter of Fochi v New York State Comptroller, 78 AD3d 1460, 1461-1462 , lv denied 16 NY3d 707 ).
Petitioner's remaining claims have been examined and found to be either unpersuasive or rendered academic in light of the above conclusions.
Mercure, Acting P.J., Spain, Stein and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
ENTER: Robert D. Mayberger Clerk of the Court
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