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In the Matter of James Ferris v. Thomas P. Dinapoli

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


February 9, 2012

IN THE MATTER OF JAMES FERRIS, PETITIONER,
v.
THOMAS P. DINAPOLI, AS STATE COMPTROLLER, RESPONDENT.

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

MEMORANDUM AND JUDGMENT

Calendar Date: January 10, 2012

Before: Mercure, Acting P.J., Rose, Spain, Malone Jr. and McCarthy, 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 firefighter, sprained his right knee in 1988 when he slipped while getting out of a fire truck. In 2008, he injured both knees when he fell while sliding down a fire pole, and he thereafter underwent surgery on his left knee. Petitioner applied for accidental and performance of duty disability retirement benefits, claiming that he was unable to perform his job duties due to these injuries. Following the denial of his applications, petitioner sought a hearing and redetermination. A Hearing Officer denied the applications, finding, among other things, that although petitioner was incapacitated from performing his job duties, he had not established that he was incapacitated as the result of an accident or a disability sustained in service. Respondent adopted the Hearing Officer's findings, prompting this CPLR article 78 proceeding.

We confirm. The New York State and Local Police and Fire Retirement System concedes that petitioner is permanently incapacitated from performing the duties of a firefighter. Nonetheless, he is entitled to accidental or performance of duty disability retirement benefits only upon "demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service" (Matter of Feeney v DiNapoli, 68 AD3d 1425, 1426 [2009]; accord Matter of Micalizzi v DiNapoli, 81 AD3d 1067, 1067 [2011]). To that end, petitioner presented the reports of physician Amy Weiss-Citrome and orthopedic surgeon Douglas Fauser, who both opined that petitioner's incapacity was due to meniscal tearing in the left knee that is causally related to the 2008 incident. Petitioner also presented the report of orthopedic surgeon Paul Carton, who stated that petitioner was incapacitated due to bilateral contusion of the knees related to the 2008 incident. Citrome, Fauser and Carton also found pre-existing osteoarthritis.

The Retirement System presented the report and testimony of orthopedic surgeon Jeffrey Dermksian, who examined petitioner and reviewed his medical records on its behalf. Dermksian diagnosed bilateral knee pain due to severe osteoarthritis in petitioner's right knee and moderate to severe osteoarthritis in the left knee. He concluded that this condition was not causally related to petitioner's employment. Rather, he opined that the osteoarthritis was the result of the surgeries performed on petitioner's right knee in 1979, both knees in 2003 and left knee in 2007, noting the findings of pre-existing osteoarthritis in 2008, and petitioner's excessive weight. Inasmuch as Dermksian's opinion was rational and fact-based, we conclude that respondent's determination is supported by substantial evidence and we will not disturb it (see Matter of Micalizzi v DiNapoli, 81 AD3d at 1068; Matter of Matthews v DiNapoli, 58 AD3d 1049, 1050 [2009]). In light of the foregoing, petitioner's remaining contention that the 1988 incident constituted an accident for purposes of his application for accidental disability retirement benefits is rendered academic (see Matter of Eddie v DiNapoli, 72 AD3d 1326, 1327 [2010]).

Rose, Spain, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120209

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