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In the Matter of John N. Kossifos v. Thomas P. Dinapoli

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


February 9, 2012

IN THE MATTER OF JOHN N. KOSSIFOS, PETITIONER,
v.
THOMAS P. DINAPOLI, AS STATE COMPTROLLER, RESPONDENT.

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

MEMORANDUM AND JUDGMENT

Calendar Date: January 5, 2012

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, 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 application for performance of duty disability retirement benefits.

Petitioner, a correction officer, injured his right knee while subduing an inmate in August 2003. In 2007, he applied for performance of duty disability retirement benefits, alleging that he was permanently incapacitated from performing his job duties as a result of the 2003 injury. The application was initially denied and petitioner sought a hearing and a redetermination.

Following a hearing, the Hearing Officer denied the application, finding that, although petitioner was permanently disabled from performing his job duties, the disability was not the natural and proximate result of the performance of those duties. Respondent adopted the Hearing Officer's findings and this CPLR article 78 proceeding ensued.

We confirm. It is uncontroverted that petitioner is permanently disabled from performing the duties of a correction officer. Accordingly, in order to be entitled to performance of duty disability retirement benefits, petitioner must demonstrate that his disablement was "the natural and proximate result of an injury, sustained in the performance or discharge of his . . . duties, or as the natural or proximate result of any act of an inmate" (Retirement and Social Security Law § 607-c [a]). To that end, petitioner submitted the medical report of Win Chang, a treating physician, who opined that petitioner suffers from "severe traumatic endstage osteoarthritis" related to his work injury. Petitioner also relies on two medical reports, based upon independent medical examinations, finding that he was disabled due to degenerative osteoarthritis that was aggravated by the August 2003 incident and that his symptoms were causally related to both the incident and his pre-existing arthritis. In contrast, Eric Zitzmann, a physician who examined petitioner on behalf of the New York State and Local Retirement System, opined that the August 2003 incident only caused a temporary aggravation, and that "the competent and permanent cause of his disability is the severe bilateral knee osteoarthritis aggravated by his marked increase in weight."*fn1

"Where, as here, there is conflicting medical evidence, respondent is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another" (Matter of Gatewood v DiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]; accord Matter of Wilkinson v DiNapoli, 86 AD3d 851, 853 [2011]). Here, Zitzmann presented a rational and fact-based opinion, based upon his examination of petitioner and a review of the pertinent medical records, that petitioner's disability was caused by the progression of a degenerative arthritic condition which was unrelated to his employment. Accordingly, respondent's determination is supported by substantial evidence and it will not be disturbed, despite evidence in the record supporting a contrary result (see Matter of Kaufman v Murray, 85 AD3d 1534, 1535 [2011]; Matter of Fochi v New York State Comptroller, 78 AD3d 1460, 1461-1462 [2010], lv denied 16 NY3d 707 [2011]).

Rose, Lahtinen, Kavanagh and Garry, 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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