State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
IN THE MATTER OF LUIS QUEVEDO, PETITIONER,
OFFICE OF THE NEW YORK STATE COMPTROLLER ET AL., RESPONDENTS.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND JUDGMENT
Calendar Date: November 15, 2012
Before: Mercure, J.P., Rose, 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 the Comptroller which denied petitioner's application for disability retirement benefits.
Petitioner worked as a developmental aide for the Staten Island Developmental Disabilities Services Office and, in 2007, sustained a back injury when he was attacked by a consumer for whom he was caring. He subsequently applied for disability retirement benefits, and there was no dispute that petitioner was permanently incapacitated from the performance of his duties. The Comptroller nevertheless denied petitioner's application after a hearing, finding that his disability was not the natural and proximate result of the assault. This CPLR article 78 proceeding ensued.
Because petitioner had less than 10 years of service credit at the time he applied for disability retirement benefits, he was obliged to prove that his disability was "the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties" (Retirement and Social Security Law § 605 [b] ; see Matter of Gonzalez v New York State & Local Employees' Retirement Sys., 79 AD3d 1562, 1563 ). The Comptroller's determination on the issue of causal relationship will be upheld if supported by substantial evidence in the record and, in that regard, he credited the opinion of orthopedic surgeon Edward Toriello that petitioner's disability was unrelated to the attack (see Matter of Hilson v Hevesi, 16 AD3d 895, 895 ; Matter of Paront v New York State Employees' Retirement Sys., 205 AD2d 1008, 1009 ). Indeed, after examining petitioner and reviewing his medical records, Toriello concluded that petitioner's disability stemmed from degenerative changes caused by his obesity. While medical evidence to the contrary was presented, the Comptroller was free to rely upon Toriello's opinion and, thus, substantial evidence supports the determination at issue (see Matter of Hilson v Hevesi, 16 AD3d at 895-896).*fn1
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court