Stancarone v. DiNapoli

219 A.D.3d 1649

196 N.Y.S.3d 592

In the Matter of Joseph STANCARONE, Petitioner,

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

532658

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

Calendar Date: September 12, 2023

Decided and Entered: September 28, 2023

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

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

Before: Egan Jr., J.P., Lynch, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Fisher, 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 performance of duty disability retirement benefits.

Petitioner, a police officer, filed an application for performance of duty disability retirement benefits in July 2012, alleging that he was permanently incapacitated therefrom due to injuries sustained to his neck and back after falling down a set of stairs in November 2011. The application was denied, and petitioner requested a hearing and redetermination. At the conclusion of the hearing that followed, during the course of which petitioner, his treating physician and the physician who evaluated petitioner at the request of the New York State and Local Retirement System appeared and testified, the Hearing Officer upheld the denial, finding that petitioner failed to demonstrate that he was permanently incapacitated from the performance of his duties. Respondent adopted the Hearing Officer's findings and conclusions, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

As the applicant, petitioner bore the burden of establishing that he was permanently incapacitated from the performance of his duties as a police officer "as the natural and proximate result of a disability ... sustained in such service" ( Retirement and Social Security Law § 363–c [b][1] ; see Matter of Harder v. DiNapoli, 213 A.D.3d 1101, 1102, 184 N.Y.S.3d 211 [3d Dept. 2023] ; Matter of Clarke v. DiNapoli, 187 A.D.3d 1286, 1287, 132 N.Y.S.3d 164 [3d Dept. 2020] ). Respondent "is vested with the exclusive authority to determine all applications for retirement benefits" ( Matter of Rosario v. New York State Comptroller, 178 A.D.3d 1270, 1271, 116 N.Y.S.3d 401 [3d Dept. 2019] ) and, in connection therewith, resolve conflicting medical evidence and credit one expert's opinion over that of another (see Matter of Solarino v. DiNapoli, 171 A.D.3d 1434, 1435, 98 N.Y.S.3d 674 [3d Dept. 2019] ; Matter of Ellrodt v. DiNapoli, 169 A.D.3d 1128, 1129, 93 N.Y.S.3d 732 [3d Dept. 2019] ). Respondent's determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed (see Matter of Rosario v. New York State Comptroller, 178 A.D.3d at 1271, 116 N.Y.S.3d 401 ; Matter of Keitel v. DiNapoli, 154 A.D.3d 1047, 1048, 62 N.Y.S.3d 207 [3d Dept. 2017] ).

The Retirement System's expert, a board-certified orthopedic surgeon, testified that he examined petitioner in February 2017, at which time petitioner complained of, as relevant here, back pain that traveled to his lower right extremity 75% of the time and variable pain and numbness involving his right foot. In preparation for such examination, the Retirement System's expert reviewed petitioner's job duties and various medical records, including the results of numerous imaging studies and four electrodiagnostic tests. The expert noted that all of petitioner's imaging studies were normal. Although acknowledging that certain of petitioner's electrodiagnostic tests showed abnormal results, revealing "lumbosacral nerve root dysfunction involving the mid to lower lumbar spine" and "acute right-side L5 radiculopathy and possible left-side S1 radiculopathy with peripheral neuropathy," the expert testified that his physical examination of petitioner revealed "no objective signs of any abnormality" with respect to petitioner's back or neck. Specifically, the expert testified that, upon examining petitioner, he did not detect any neck spasms, which was "significant, because that finding indicated that there was no active nerve root compression or irritation." An axial compression test, which involved applying downward pressure to petitioner's head and neck region, also was negative, further indicating "that there was no clinical evidence for any nerve root compression." The expert's examination of petitioner's back was similarly unremarkable, revealing that the spinal column was aligned, that there was normal sensation in both lower extremities and that no active mid- or lower-back spasms were detected. Such examination, which was conducted approximately one year after the January 2016 electrodiagnostic study, "did not confirm any acute right-side L5 radiculopathy, and there was no evidence of any possible left-side S1...