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In re Peluso-Torres

Supreme Court of New York, Third Department

July 25, 2013

In the Matter of RIA PELUSO-TORRES, Petitioner,
v.
THOMAS P. DiNAPOLI, as State Comptroller, Respondent.

Calendar Date: May 22, 2013

Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Before: Peters, P.J., Rose, Stein and Garry, JJ.

MEMORANDUM AND JUDGMENT

Rose, J.

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 police sergeant, sustained a work-related injury to her knee in 2008. In 2009, petitioner applied for performance of duty disability retirement benefits, alleging that she is permanently incapacitated from the performance of her duties as a result of the injury. Petitioner's application was denied and she thereafter requested a hearing and redetermination. Following a hearing, the Hearing Officer denied the application, finding that she did not meet her burden of establishing permanent disability. Respondent adopted the Hearing Officer's findings and this CPLR article 78 proceeding ensued.

We are unpersuaded by petitioner's contention that the medical opinion of John Mazella, an orthopedic surgeon whose evaluations were credited by respondent, is speculative and lacking in foundation. The record establishes that Mazella's medical opinion was based upon an examination of petitioner, as well as a review of pertinent medical records, reports and petitioner's employment duties. Significantly, Mazella noted no objective findings indicating that petitioner was permanently incapacitated from the performance of her duties due to her knee injury. Notwithstanding other medical opinions in the record that could support a contrary conclusion, respondent is vested with the broad authority to resolve any conflicts in the medical evidence presented and credit one medical opinion over that of another (see Matter of Maiorano v New York State Comptroller, 78 A.D.3d 1462, 1463 [2010]; Matter of Bautista v DiNapoli, 70 A.D.3d 1165, 1166 [2010]). As the record demonstrates that Mazella articulated a rational and fact-based opinion after examining petitioner and reviewing relevant records, substantial evidence supports respondent's determination and, therefore, it will not be disturbed (see Matter of Bautista v DiNapoli, 70 A.D.3d at 1166; Matter of Salik v New York State & Local Employees' Retirement Sys., 69 A.D.3d 1029, 1030 [2010]).

Peters, P.J., Stein and Garry, JJ., concur.

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


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