Calendar Date: April 24, 2017
Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan
K. Allen of counsel), for petitioner.
T. Schneiderman, Attorney General, Albany (Kathleen M.
Landers of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
MEMORANDUM AND JUDGMENT
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 denying petitioner's
applications for disability and performance of duty
disability retirement benefits.
was employed as a correction officer at the Westchester
County Jail beginning in 2000. On November 20, 2010,
petitioner assisted in controlling a female inmate who was
refusing direct orders to remove her street clothes as part
of the booking process. Petitioner's responsibility was
to physically pin down the inmate with a torso-sized plastic
police shield while the other correction officers attempted
to remove her clothes, which he did. Petitioner felt that the
incident "went on forever" and he "was
experiencing extreme anxiety" during the incident.
Petitioner stopped working in 2011 and has never returned.
November 2011, petitioner applied for Retirement and Social
Security Law article 15 disability and performance of duty
disability retirement benefits, alleging that he was
permanently disabled due to posttraumatic stress disorder and
chronic fatigue syndrome stemming from the November 2010
incident. Following the initial denial of his applications,
petitioner requested a hearing and a redetermination. After
considering hearing testimony and reviewing petitioner's
medical records and evaluative reports, the Hearing Officer
found, among other things, that petitioner was not
permanently incapacitated from the performance of his duties
and denied both applications. Respondent adopted the Hearing
Officer's decision, prompting petitioner to commence this
CPLR article 78 proceeding.
confirm. "In connection with any application for
[article 15 disability] or performance of duty disability
retirement benefits, the applicant bears the burden of
proving that he or she is permanently incapacitated from the
performance of his or her job duties" (Matter of
Califano v DiNapoli, 147 A.D.3d 1177, 1177-1178 
[internal quotation marks and citation omitted]; see
Matter of Aliperti v DiNapoli, 138 A.D.3d 1378, 1379
). "Moreover, respondent is vested with the
authority to resolve conflicting medical evidence in that
regard and to credit one expert's opinion over another,
and his determination will be sustained if supported by
substantial evidence" (Matter of Anderson v
DiNapoli, 126 A.D.3d 1278, 1279  [citations
omitted]; see Matter of Aliperti v DiNapoli, 138
A.D.3d at 1379).
Hearing Officer credited the evaluative report of Steven
Fayer, a psychiatrist who performed an independent medical
examination of petitioner on behalf of the New York State and
Local Retirement System. Fayer opined that petitioner
suffered from a major depressive disorder and a general
anxiety disorder - neither of which were alleged in
petitioner's applications - and concluded that
petitioner's condition was not permanent and that he
would be able to return to work as a correction officer after
a period of at least six months of aggressive psychiatric
treatment. Contrary to petitioner's contention, this
articulated, rational and fact-based evaluative report
constituted substantial evidence for the determination that
petitioner was not permanently incapacitated from the
performance of his duties (see Matter of Guadagnolo v
DiNapoli, 128 A.D.3d 1246, 1249 ; Matter of
Buczynski v New York State & Local Empls. Retirement
Sys., 291 A.D.2d 630, 630-631 ; compare Matter
of Cook v New York State Comptroller, 135 A.D.3d 1117,
1119 ), particularly in light of another independent
medical examiner making the same diagnoses and leaving open
the possibility that petitioner could improve with treatment.
medical witnesses testified to the contrary, but, suffice it
to say, these differing opinions created a credibility issue
for respondent to resolve (see Matter of Miata v
McCall, 277 A.D.2d 590, 591 ). Petitioner's
remaining contentions, to the extent they are not rendered
academic by the foregoing, have been examined and rejected.
McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.
that the determination is confirmed, without costs, ...