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In the Matter of Thomas J. v. Thomas P. Dinapoli

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


February 2, 2012

IN THE MATTER OF THOMAS J. MULVANEY, PETITIONER,
v.
THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK, RESPONDENT.

The opinion of the court was delivered by: Egan Jr., J.

MEMORANDUM AND JUDGMENT

Calendar Date: January 9, 2012

Before: Rose, J.P., Malone Jr., Stein, McCarthy 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, was injured in three work-related accidents occurring in 1985, 1990 and 1996. Petitioner did not return to work after the 1996 accident. Following his retirement in 2005, petitioner applied for accidental and performance of duty disability retirement benefits. After petitioner's applications initially were denied, he requested a hearing and redetermination. The Hearing Officer thereafter upheld the denial finding that petitioner was not permanently incapacitated from the performance of his duties as a police officer. Respondent accepted the determination of the Hearing Officer, prompting petitioner to commence this proceeding pursuant to CPLR article 78.

In support of his applications, petitioner offered his own testimony regarding his symptoms and the manner in which they prevent him from performing his duties as a police officer, as well as medical records and the reports of his treating physicians, who opined that he is permanently incapacitated from performing his duties as a police officer due to the injuries sustained in his workplace accidents. In contrast, the physician who examined petitioner on behalf of the New York State and Local Retirement System concluded that petitioner is not permanently incapacitated from performing the duties of a police officer, noting that petitioner's complaints of pain were not confirmed by objective clinical proof and, further, that petitioner exhibited signs of symptom magnification.

Respondent is authorized to "resolve conflicts in the medical evidence and to credit one expert's opinion over that of another, so long as the credited expert articulates a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records" (Matter of Freund v Hevesi, 34 AD3d 950, 950 [2006]). Inasmuch as the opinion of the Retirement System's expert meets this criteria, respondent's determination is supported by substantial evidence and, hence, will not be disturbed (see Matter of Ragno v DiNapoli, 68 AD3d 1342, 1344 [2009]; Matter of Macri v DiNapoli, 56 AD3d 936, 937 [2008]).

Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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