Opinion
January 28, 1993
Appeal from the Supreme Court, Albany County.
On petitioner's application for accidental disability retirement benefits, he listed March 7, 1989 as the date of his "accident" because that was the date he found out that he had heart disease. There is no presumption under Retirement and Social Security Law § 363-a (2) that a disease of the heart is a natural and proximate result of an accident. Petitioner, a police officer, was still required to establish that his disability was the proximate result of an accident (see, Matter of Acciavatti v Levitt, 57 A.D.2d 131), which he failed to do. On the record before us, the conclusion by respondent Comptroller that petitioner did not sustain an accident on March 7, 1989 within the meaning of Retirement and Social Security Law § 363 is supported by substantial evidence (see, Matter of Chambers v Regan, 125 A.D.2d 920; Matter of Cummings v. Regan, 107 A.D.2d 968). The same is true with respect to the Comptroller's conclusion that the stress petitioner encountered as part of his regular duties did not constitute an accident (see, Matter of Malenda v. Regan, 134 A.D.2d 808; Matter of Galioto v. Regan, 126 A.D.2d 880). There is also substantial evidence to support the Comptroller's determination that while involved in his antidiscrimination lawsuit, petitioner was not engaged in the performance of his duties upon which his membership in respondent New York State and Local Police and Fire Retirement System was based (see, Matter of Pucillo v. Regan, 98 A.D.2d 877, affd 62 N.Y.2d 736; Matter of Sorli v. Levitt, 77 A.D.2d 773, appeal dismissed 52 N.Y.2d 897).
We turn next to petitioner's application for performance of duty disability retirement benefits. It is not disputed that petitioner is disabled and that he established sufficient facts for application of the statutory "heart presumption" under Retirement and Social Security Law § 363-a (2), i.e., that is that his disability was incurred in the performance and discharge of his duties. That presumption, however, was rebutted in this case by competent evidence to the contrary (compare, Matter of McComb v. Regan, 180 A.D.2d 862, with Matter of Di Laura v. Regan, 189 A.D.2d 994). According to the testimony of the Retirement System's medical expert the stress of petitioner's duties was not the cause of his disability, which came on gradually with a family history of hypertension. Although petitioner's physician disagreed, it was within the Comptroller's discretion to accord greater weight to the testimony of one physician over another (see, Matter of DiFede v. Regan, 130 A.D.2d 832). Petitioner's remaining contentions have been considered and rejected as either unpreserved for review or unpersuasive.
Mikoll, J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.