Lenci v. DiNapoli

210 A.D.3d 1224

178 N.Y.S.3d 248

In the Matter of Marc LENCI, Petitioner,

v.Thomas P. DINAPOLI, as State Comptroller, Respondent.

534768

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

Calendar Date: October 11, 2022

Decided and Entered: November 10, 2022

Schwab & Gasparini, PLLC, White Plains (Warren Roth of counsel), for petitioner.

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

Before: Garry, P.J., Clark, Aarons, Pritzker 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 denying petitioner's applications for accidental disability retirement benefits and disability retirement benefits.

In 2013, petitioner, a police officer, filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained at work on September 6, 2012, February 17, 2013 and May 8, 2013. In a November 2014 determination, the New York State and Local Police and Fire Retirement System denied petitioner's application, finding that, although petitioner is incapacitated and unable to perform his duties, his disability is not the natural and proximate result of the alleged accidents sustained in service and, moreover, that the incidents of September 2012 and May 2013 did not constitute accidents within the meaning of Retirement and Social Security Law § 363. In 2015, petitioner filed a second application for accidental disability retirement benefits alleging that he was permanently disabled as a result of an alleged accident that occurred at work on December 15, 2013. The Retirement System denied petitioner's second application, finding once again that, although petitioner is incapacitated from the performance of his duties, his disability is not the natural and proximate result of an accident sustained in service.

At the requested hearings and redetermination that followed, petitioner withdrew the September 2012 incident from consideration, and the Retirement System conceded that the February 2013 and December 2013 incidents constituted accidents. Thus, the sole issues at the hearing distilled to whether the May 2013 incident qualified as an accident, whether petitioner's permanent and disabling right knee injury was the natural and proximate result of an accident sustained while in service and whether petitioner's cervical spine injury was permanently incapacitating and, if so, whether it was caused by an accident sustained while in service. Following the hearings, the Hearing Officer upheld the denial of petitioner's applications, finding that petitioner failed to establish that the May 2013 incident was an accident, that his disabling right knee injury was the natural and proximate result of the February 2013 or December 2013 accidents and that he was permanently incapacitated as a result of his neck injury. Respondent adopted the Hearing Officer's findings and conclusions, and this CPLR article 78 proceeding ensued.

As an initial matter, respondent concedes that the May 2013 incident constitutes an accident within the meaning of the Retirement and Social Security Law. Inasmuch as respondent did not reach the issue of whether petitioner's permanent disability to his right knee was the natural and proximate result of the May 2013 accident, we remit the matter for that purpose (cf. Matter of Arroyo v. DiNapoli, 195 A.D.3d 1290, 1292, 151 N.Y.S.3d 198 [3d Dept. 2021] ).

Turning to the balance of the issues raised on appeal, there is no dispute that the February 2013 and December 2013 incidents constituted accidents within the meaning of the Retirement and Social Security Law and that petitioner is permanently incapacitated from the performance of his duties as a result of his disabling right knee condition. "Nevertheless, to be eligible for accidental disability retirement benefits, petitioner's incapacitation must be the natural and proximate result of an accident sustained while in service" ( Matter of Whipple v. New York State & Local Retirement Sys., 126 A.D.3d 1282, 1283, 6 N.Y.S.3d 706 [3d Dept. 2015] [internal quotation marks, brackets and citations omitted], lv denied 26 N.Y.3d 912, 2015 WL 7289506 [2015] ; see Retirement and Social Security Law § 363[a][1] ). Thus, petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of either the February 2013 or December 2013 accident (see Matter of Somuk v. Dinapoli, 145 A.D.3d 1339, 1341, 44 N.Y.S.3d 250 [3d Dept. 2016] ; Matter of Ripp v. New York State & Local Police & Fire Retirement Sys., 136 A.D.3d 1143, 1144, 24 N.Y.S.3d 803 [3d Dept. 2016] ). "Where substantial evidence supports respondent's decision, it will not be disturbed" ( Matter of Whipple v. New York State & Local Retirement Sys., 126 A.D.3d at 1283, 6 N.Y.S.3d 706 [citations omitted]; see Matter of Messina v. New York State & Local Employees’ Retirement Sys., 102 A.D.3d 1068, 1068, 959 N.Y.S.2d 289 [3d Dept. 2013], lv denied 21 N.Y.3d 855, 2013 WL 1876514 [2013] ). "Where, as here, the evidence from the medical experts is conflicting, respondent has the authority to resolve such 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 Amedio v. Hevesi, 45 A.D.3d 1004, 1005, 845 N.Y.S.2d 529 [3d Dept. 2007] [internal quotation marks, brackets, ellipsis and citations omitted], appeal dismissed 10 N.Y.3d 744, 853 N.Y.S.2d 531, 883 N.E.2d 355 [2008] ; see Matter of Mazzei v. Hevesi, 45 A.D.3d 1103, 1104, 845 N.Y.S.2d 559 [3d Dept. 2007] ).

Petitioner testified that, during his tenure as a police officer from 1998 to 2014, he was injured on approximately 10 occasions and that he had surgery on his right knee in 1998 and 1999. He also acknowledged that he previously injured his neck in April 2005 during a motor vehicle accident and that he subsequently sought treatment for his neck including treatment from a chiropractor. At the time of the February 2013 accident, petitioner, while ascending basement stairs during an investigation of a suspected burglary, sustained injuries to, among other things, his right knee and neck when the basement door suddenly sprung open and hit him in the back of his head, resulting in petitioner being pushed down a couple of stairs. As for the December 2013 accident, petitioner testified that he sustained injuries to, among other things, his right knee and neck when he slipped and fell on black ice. Petitioner explained that, as a result of these accidents and the resulting disabling injuries to his...