Bucci v. Dinapoli

211 A.D.3d 1191

179 N.Y.S.3d 808

In the Matter of Alexandra BUCCI, Petitioner,

v.Thomas P. DINAPOLI, as Comptroller of the State of New York, Respondent.

532655

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 14, 2022

Decided and Entered: December 8, 2022

Schwab and Gasparini, PLLC, White Plains (Warren J. Roth of counsel), for appellant.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND JUDGMENT

Aarons, 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 denying petitioner's applications for accidental disability retirement benefits and performance of duty disability retirement benefits.

Petitioner, a police officer since 2006, applied for accidental disability retirement benefits and performance of duty disability retirement benefits. The applications were based upon injuries incurred in February 2009 to her left foot, in February 2010 to her left foot and lower back and in June 2012 to her left hip. Initially, the New York State and Local Retirement System denied the applications. Following a hearing, a Hearing Officer upheld the denials finding that the 2009 and 2010 incidents causing left foot and back injuries did not result in petitioner's permanent incapacitation, and that the 2012 incident, which permanently incapacitated petitioner, did not constitute an accident within the meaning of Retirement and Social Security Law § 363 and did not cause her hip condition. Upon further review, respondent affirmed.

To receive performance of duty disability retirement benefits, petitioner "bore the burden of proving that [s]he was ‘physically or mentally incapacitated from performance of duty as the natural and proximate result of a disability sustained in such service’ " ( Matter of Rosario v. New York State Comptroller, 178 A.D.3d 1270, 1270–1271, 116 N.Y.S.3d 401 [3d Dept. 2019] [brackets and ellipsis omitted], quoting Retirement and Social Security Law § 363–c [b][1] ). Petitioner testified at the hearing that, while interviewing a victim at a hospital as part of her police officer duties, she went to the restroom and, as she was about to exit, she slipped and fell on an unknown substance and injured her left hip. Petitioner thereafter required three surgeries to her left hip performed by orthopedic surgeons – the first to repair a tear in the labrum, the second to repair a recurrent tear in the left hip labrum, both performed by Thomas Youm, and a third surgery, a periacetabular osteotomy, in which the pelvic bone was cut and remodeled, by Roy Davidovitch. The testimony of Youm and Davidovitch further established that, as a result of prolonged post-surgical recovery periods and use of crutches following her left hip surgeries, in which she relied on her right side to compensate for her left side, petitioner sustained a consequential labral tear to her right hip that also required surgeries to repair the tear and a periacetabular osteotomy. Youm and Davidovitch also testified that petitioner had hip dysplasia, a congenital abnormality which made her more susceptible to labral tears, retears and slower surgical healing.

At the hearing, the Retirement System made numerous concessions, including, as relevant here, that petitioner was permanently incapacitated from the performance of her duties as a police officer as a result of her hip injuries. Respondent now concedes that it was error to deny petitioner's application for performance of duty disability retirement benefits given that her bilateral hip condition was caused by an in-service incident and left her permanently incapacitated from performing her duties. We agree. The only disputed issue at the hearing with regard to petitioner's application for performance of duty disability retirement benefits based upon the 2012 incident was causation, that is, whether the fall caused her hip disability and permanent incapacitation. Both Youm and Davidovitch, who treated petitioner and performed surgery on her hips, concluded that the fall caused her hip pain, which she did not have prior to that fall, and caused her labral tears and bilateral, permanently disabling hip condition. In denying this application, the Hearing Officer relied upon the report of an orthopedic surgeon who conducted an independent medical exam of petitioner in 2015¹ on behalf of the Retirement System and agreed that she was permanently incapacitated due to her hip condition, which he attributed to her hip dysplasia, concluding that this congenital condition was not caused by her 2012 fall. However, petitioner never claimed that the fall caused her dysplasia but, rather, alleged that the fall caused her labral tears and ensuing bilateral hip disability. That surgeon did not address the cause of the labral tears or their role in petitioner's incapacitation and mischaracterized her hip surgeries as due to her dysplasia rather than the labral tears, as the surgeons who performed the surgeries testified. As such, respondent's denial of petitioner's application...