Frederick v. N.Y.S. Comptroller

204 A.D.3d 1292

164 N.Y.S.3d 898 (Mem)

In the Matter of John FREDERICK, Petitioner,

v.NEW YORK STATE COMPTROLLER et al., Respondents.

533695

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

Calendar Date: March 21, 2022

Decided and Entered: April 21, 2022

Miller & Caggiano, LLP, Bohemia (Vanessa Cruz of counsel), for petitioner.

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondents.

Before: Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Pritzker, 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 Comptroller denying petitioner's application for performance of duty disability retirement benefits.

Petitioner, a correction officer, filed an application for performance of duty disability retirement benefits based on injuries to his right and left shoulder, sustained in incidents in July 2015 and February 2016, when he was attempting to stop altercations between incarcerated individuals. The application was initially denied on the ground that petitioner was not incapacitated from performing his job duties and petitioner requested a hearing and redetermination. Following the hearing, the Hearing Officer concluded that petitioner had not met his burden of demonstrating that he was permanently incapacitated from performing his job duties and denied the application.¹ Respondent Comptroller adopted the Hearing Officer's findings and upheld the denial of benefits. This CPLR article 78 proceeding ensued.

"In connection with any application for 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 Ellrodt v. DiNapoli, 169 A.D.3d 1128, 1128–1129, 93 N.Y.S.3d 732 [2019] [internal quotation marks, ellipsis and citations omitted]; see Matter of Clarke v. DiNapoli, 187 A.D.3d 1286, 1287, 132 N.Y.S.3d 164 [2020] ). Stuart Cherney, petitioner's treating orthopedic surgeon, opined that petitioner is permanently incapacitated from performing his job duties based upon restricted overhead motion and inflammation in both shoulders and restricted internal and external rotation in the right shoulder. Dorothy Scarpinato, the orthopedic surgeon who examined petitioner on behalf of respondent New York State and Local Employees’ Retirement System, testified that petitioner resisted her range of motion testing, which resulted in findings of a range of motion in both shoulders that were significantly lower than the range calculated by Cherney a few months earlier. In light of this discrepancy, Scarpinato opined that petitioner was being uncooperative during the examination, which prevented her from determining whether he was permanently incapacitated from performing his job duties.² Although petitioner testified that he was being cooperative during the examination but that pain restricted his range of motion, the Hearing Officer and the Comptroller credited Scarpinato's testimony and medical report and concluded that petitioner had "deliberately frustrated the Retirement System's ability to confirm, and/or rebut, [his] assertions regarding his alleged disability." According...