In the Matter of SCOTT F. IOVINO, Petitioner,
THOMAS P. DiNAPOLI, as State Comptroller, Respondent.
Calendar Date: May 1, 2018
Bartlett LLP, White Plains (Jason D. Lewis of counsel), for
Barbara D. Underwood, Attorney General, Albany (William E.
Storrs of counsel), for respondent.
Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker,
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 accidental and performance of duty
disability retirement benefits.
a police officer, applied for accidental and performance of
duty disability retirement benefits claiming that a 2010
work-related injury and ensuing 2012 surgery caused him to be
permanently incapacitated from his employment.
Petitioner's applications were initially denied.
Following an administrative hearing, the Hearing Officer
upheld the denials and found that, although petitioner was
permanently incapacitated, the incident did not constitute an
accident within the meaning of the Retirement and Social
Security Law and that neither the incident nor related
surgery caused petitioner's disability. Respondent
adopted the Hearing Officer's findings and conclusions.
Petitioner thereafter commenced this CPLR article 78
confirm. With regard to accidental disability retirement
benefits, "[p]etitioner bears the burden of
demonstrating that his disability arose out of an accident as
defined by the Retirement and Social Security Law, and
respondent's determination in that regard will be upheld
if supported by substantial evidence" (Matter of
Mitchell v DiNapoli, 154 A.D.3d 1029, 1030 
[internal quotation marks and citations omitted]; see
Matter of Bodenmiller v DiNapoli, 157 A.D.3d 1120, 1121
). To qualify as an accident, the underlying incident
"must be a sudden, fortuitous, out of the ordinary and
unexpected event that does not result from an activity
undertaken in the performance of regular or routine
employment duties" (Matter of Mitchell v
DiNapoli, 154 A.D.3d at 1030 [internal quotation marks
and citations omitted]). "[A]n injury which occurs
without an unexpected event as the result of activity
undertaken in the performance of ordinary employment duties,
considered in view of the particular employment in question,
is not an accidental injury" (Matter of Martins v
DiNapoli, 156 A.D.3d 1031, 1031 ; see Matter
of Kelly v DiNapoli, 30 N.Y.3d 674, 681-682 ).
petitioner responded to a call and sustained an injury to his
fingers while assisting the medical examiner in carrying a
large, deceased male to a transport vehicle. Petitioner
acknowledged that this work was within the scope of his job
duties, regardless of the heft of the body to be carried.
Consequently, substantial evidence supports respondent's
determination that the incident did not constitute an
accident entitling petitioner to receive accidental
disability retirement benefits (see Matter of Kelly
DiNapoli, 30 N.Y.3d at 684-685; Matter of Somuk v
DiNapoli, 145 A.D.3d 1339, 1340-1341 ; Matter
of Esposito v Regan, 162 A.D.2d 870, 871 ).
to petitioner's application for performance of duty
disability retirement benefits, there is no dispute that he
is permanently incapacitated from the performance of his
duties. As a result, "the issue before us distills to
whether petitioner met his burden of demonstrating that his
disability was caused by his workplace injuries"
(Matter of Andrus v DiNapoli, 114 A.D.3d 1078, 1079
; see Matter of Volpe v Murray, 112 A.D.3d
1054, 1055 ). Where, as here, there is conflicting
medical evidence, respondent "is authorized to resolve
the conflicts and to credit one expert's opinion over
that of another so long as the credited expert articulates a
rational and fact-based opinion founded upon a physical
examination and review of the pertinent medical records"
(Matter of Pufahl v Murray, 111 A.D.3d 1050, 1051
 [internal quotation marks and citations omitted]).
credited the testimony and report of Neal Hochwald, an
orthopedic surgeon with a subspecialty in hand surgery, who
examined petitioner and reviewed his medical records to
conclude that, while petitioner had a disabling problem with
his left hand and fingers, that problem was unconnected to
the 2010 injury or 2012 surgery. Hochwald instead opined that
petitioner's preexisting psoriasis led to psoriatic
flexor tenosynovitis associated with psoriatic arthritis.
Petitioner's later diagnosis of reflex sympathetic
dystrophy (hereinafter RSD) was also, according to Hochwald,
unconnected to the injury or surgery. Hochwald noted in
particular that RSD would develop no more than a few months
after any causative trauma but that, in this case, petitioner
returned to work after the injury and surgery and was not
diagnosed with RSD until 17 months after the surgery.
Hochwald's rational and fact-based opinion provides
substantial evidence to support respondent's
determination and, therefore, it will not be disturbed,
despite the presence of proof in the record that could
support a contrary conclusion (see Matter of Ortiz v
DiNapoli, 98 A.D.3d 1224, 1225 ). We have reviewed
petitioner's remaining contentions, including his
challenge to the medical evidence reviewed by Hochwald, and
find them to be without merit.
McCarthy, Aarons and Pritzker, JJ., concur.
P.J. (concurring in part and dissenting in part).
concur in that part of the majority's decision finding
that petitioner was not entitled to accidental disability
retirement benefits. I respectfully dissent as to the denial
of petitioner's application for performance of duty
disability retirement benefits, ...