Habaibeh v. Dinapoli

2024 NY Slip Op 00216

In the Matter of Khawlah Habaibeh, Petitioner, v. Thomas P. DiNapoli, as State Comptroller, Respondent.

No. CV-22-1980

Supreme Court of New York, Third Department

January 18, 2024

Calendar Date:December 13, 2023

Law Office of Victor Aqeel, Windermere, Florida (Victor Aqeel of counsel), for petitioner.

Letitia James, Attorney General, Buffalo (Sarah L. Rosenbluth of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, McShan and Mackey, JJ.

REYNOLDS FITZGERALD, 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 application for disability retirement benefits.

Petitioner was a teacher's aide responsible for supervising special needs children in various activities for a city school district. Following an incident on September 8, 2015 in which two students reportedly collided with her, petitioner had lumbar decompression surgery that left her with residual pain, loss of sensation and other complications, and she returned to work approximately one year later, without restrictions. About one month later, on October 5, 2016 students again ran into petitioner causing her to fall and sustain injuries, and she did not return to work, retiring in August 2017. Although additional surgery was recommended by her treatment providers, petitioner declined to have further surgery.

Petitioner applied for disability retirement benefits pursuant to Retirement and Social Security Law § 605, alleging that she was permanently incapacitated from performing her job duties due to the two incidents and the residual problems after her back surgery. The application was denied on the ground that she was not permanently incapacitated from the performance of her job duties. Following a hearing at which conflicting medical opinions were offered, her application was denied on the basis, among others, that she had not demonstrated permanent incapacitation from the performance of her duties as a teacher's aide, and, upon review, respondent upheld and adopted that determination. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. As it was undisputed that petitioner had more than 10 years of service, the sole issue at the hearing was whether she was permanently incapacitated from performing her duties as a teacher's aide (see Retirement and Social Security Law § 605 [b] [1]; [c]). To be entitled to disability retirement benefits, petitioner had the burden of proving that she is "physically... incapacitated for the performance of gainful employment, and that [she] was so incapacitated at the time [that she] ceased [her] performance of duties and ought to be retired for disability" (Retirement and Social Security Law § 605 [c]; see Matter of DeFazio v DiNapoli, 211 A.D.3d 1254, 1254 [3d Dept 2022]; Matter of Frederick v New York State Comptroller, 204 A.D.3d 1292, 1292-1293 [3d Dept 2022]).

In finding that petitioner was not permanently incapacitated from performing the duties of her teacher's aide position, the Hearing Officer and respondent credited the opinion of the orthopedic surgeon who examined her on behalf of the New York State and Local Employees' Retirement System. The orthopedist found no objective evidence of a neurologic condition that would indicate a permanent disability, concluding that petitioner was not permanently incapacitated and had engaged in symptom magnification. The orthopedist reviewed petitioner's medical records including the postsurgical reports, X-rays and normal MRIs and found that while she had sustained lumbar spinal sprain following the 2015 incident, it was surgically corrected and the exam of her left leg and lower back was unremarkable with no complaints of radicular pain during the exam. The conclusion of no permanent incapacitation was based upon the further examination findings of no muscle atrophy or abnormality in her lower left extremities, no gross anatomical spinal/lumbar compression, instability or tenderness, no gross neurological findings and no evidence of a foot drop or advanced...