In the Matter of DANIEL R. PORTMORE, Petitioner,
NEW YORK STATE COMPTROLLER et al., Respondents.
Calendar Date: June 7, 2017
Edelstein & Grossman, New York City (Jonathan I.
Edelstein of counsel), for petitioner.
T. Schneiderman, Attorney General, Albany (Kathleen M.
Landers of counsel), for respondents.
Before: Peters, P.J., Rose, Mulvey, Aarons and Pritzker, 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 Comptroller denying
petitioner's application for accidental disability
a police officer, applied for accidental disability
retirement benefits in 2012, alleging that he was permanently
incapacitated from the performance of his job duties as the
result of injuries suffered in three work-related incidents.
Specifically, petitioner alleged that he injured his left
ankle in May 2007 when his motorcycle tipped over, injured
his right knee in February 2008 when he fell down some stairs
at work and injured his left knee in March 2010 when he
slipped on mud while getting into his patrol car. The
application was initially denied on the ground that, although
petitioner was found to be permanently incapacitated, the
disability was not the result of an accident within the
meaning of the Retirement and Social Security Law. Petitioner
requested a hearing and redetermination. At the hearing,
respondent New York State and Local Police and Fire
Retirement System conceded that petitioner was permanently
incapacitated and that the February 2008 incident was an
accident within the meaning of the Retirement and Social
Security Law. Following the hearing, the Hearing Officer
determined that the 2007 and 2010 incidents did not
constitute accidents and that petitioner had not demonstrated
that he was permanently disabled as a result of the February
2008 accident. Respondent Comptroller upheld the
determination, and this CPLR article 78 proceeding ensued.
bears the burden of demonstrating that his disability arose
out of an accident as defined by the Retirement and Social
Security Law, and [the Comptroller's] determination in
that regard will be upheld if supported by substantial
evidence" ( Matter of Rolon v DiNapoli, 67
A.D.3d 1298, 1299  [citation omitted]; accord
Matter of Garbowski v Nitido, 139 A.D.3d 1302, 1303
). Notably, "when a preexisting dormant disease is
aggravated by an accident, thereby causing a disability that
did not previously exist, the accident is responsible for the
ensuing disability" ( Matter of Sanchez v New York
State & Local Police & Fire Retirement Sys., 208
A.D.2d 1027, 1028 ; accord Matter of Scannella v
New York State Comptroller, 119 A.D.3d 1048, 1049
; Matter of Britt v DiNapoli, 91 A.D.3d 1102,
presented the medical opinion of Salvatore Corso, his
treating orthopedic surgeon. Corso testified that the 2008
fall down the stairs resulted in a torn meniscus in
petitioner's right knee. Although Corso surgically
repaired the meniscus, he also found "significant
degenerative arthritis" in the right knee that would
require periodic injections. According to Corso,
petitioner's fall exacerbated petitioner's
preexisting arthritic condition in the knee. Corso concluded
that petitioner would eventually require a total right knee
replacement and that he was permanently disabled as a result
of the 2008 fall.
Meyer, an orthopedic surgeon, examined petitioner and
reviewed his medical records in 2013 on behalf of the
Retirement System. In his written report, Meyer found
petitioner to be permanently disabled as the result of the
2007, 2008 and 2010 incidents. Meyer was subsequently asked
to give an opinion solely as to whether the injury to the
right knee that resulted from the 2008 accident was
permanently disabling and he concluded, in a supplemental
report, that it was not. At the hearing, Meyer testified
that, although in his opinion petitioner was permanently
disabled and would eventually need a knee replacement, the
disability was the result of the degenerative arthritic
condition of both of petitioner's knees, as well as
bilateral hip degeneration. When asked, however, whether the
injury in 2008 resulted in a progression of the preexisting
arthritis, he testified that "beyond a shadow of a doubt
I can't answer that." In light of Meyer's
equivocal testimony as to whether the 2008 accident
exacerbated the preexisting degenerative condition, his
opinion lacks probative force and the Comptroller's
determination finding that petitioner had not met his burden
of proving that the 2008 accident resulted in a permanent
disability is therefore not supported by substantial evidence
and must be annulled ( see Matter of Scannella v New York
State Comptroller, 119 A.D.3d at 1049; Matter of
Britt v DiNapoli, 91 A.D.3d at 1104; Matter of King
v DiNapoli, 75 A.D.3d 793, 795 ; cf. Matter of
Ashley v DiNapoli, 97 A.D.3d 1057, 1059-1060 ;
Matter of Hilson v Hevesi, 16 A.D.3d 895, 896
). In light of the foregoing, petitioner's
remaining contentions need not be addressed.
Peters, P.J., Mulvey, Aarons and Pritzker, JJ., concur.
that the determination is annulled, without costs, and matter
remitted to respondent Comptroller for further proceedings
not inconsistent with this Court's decision.