In re of Parcell, v. Office of New York State

8 Citing cases

  1. In re Rivera

    78 A.D.3d 1295 (N.Y. App. Div. 2010)   Cited 11 times

    Here, it is not disputed that petitioner successfully passed his physical examination when he began his employment as a correction officer or that the myocardial infarction rendered him permanently incapacitated. Thus, it was the Retirement System's obligation to rebut the presumption that petitioner's disability occurred in the performance and discharge of his duties as a correction officer ( see Matter of Bryant v Hevesi, 41 AD3d 930, 931; Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d 1075, 1075 T2006]). The Retirement System offered the opinion of a cardiologist who, after examining petitioner, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," petitioner's coronary artery disease "was not related to his employment as a correction officer."

  2. Kenneth Park v. Dinapoli

    123 A.D.3d 1392 (N.Y. App. Div. 2014)   Cited 3 times

    Furthermore, he acknowledged that petitioner's symptoms could also be due to his pulmonary deficiencies. Absent a definitive diagnosis, we find Halprin's testimony concerning the cause of petitioner's cardiac condition to be inconclusive at best (see e.g. Matter of Parcell v. Office of N.Y. State Comptroller, 29 A.D.3d 1075, 1075–1076, 813 N.Y.S.2d 827 [2006] ; Matter of Skae v. Regan, 208 A.D.2d 1028, 1029–1030, 617 N.Y.S.2d 237 [1994] ; Matter of Di Laura v. Regan, 189 A.D.2d 994, 995–996, 592 N.Y.S.2d 514 [1993] ; compare Matter of Rivera v. DiNapoli, 78 A.D.3d 1295, 1296, 911 N.Y.S.2d 206 [2010] ). Accordingly, the proof submitted was insufficient to rebut the statutory presumption, and that part of the determination denying petitioner performance of duty disability retirement benefits under Retirement and Social Security Law § 607–d must be annulled.

  3. In re Harrison

    84 A.D.3d 1691 (N.Y. App. Div. 2011)   Cited 2 times

    Although Cantor acknowledged that stress could produce chest pain or cause an acute occlusion, he unequivocally stated that neither stress nor petitioner's employment as a police detective was the cause of his underlying coronary artery disease. Such testimony, coupled with petitioner's medical records and the reports submitted by other physicians who either evaluated or treated petitioner, is sufficient to rebut the statutory presumption ( see Matter of Walters v DiNapoli, 82 AD3d 1487, 1488; Matter of Marinelli v DiNapoli, 82 AD3d 1347, 1348-1349; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296; Matter of Feldon v New York State Comptroller, 69 AD3d 1092, 1093, lv denied 15 NY3d 702; Matter of O'Sullivan v DiNapoli, 68 AD3d 1416, 1417-1418; compare Matter of Parcell v Office of NY. State Comptroller, 29 AD3d 1075). To the extent that other documentary evidence in the record could support a contrary conclusion, we need note only that this presented a conflict for respondent to resolve ( see Matter of Marinelli v DiNapoli, 82 AD3d at 1349).

  4. In re William B. Walsh

    83 A.D.3d 1278 (N.Y. App. Div. 2011)

    In fact, in the Hearing Officer's decision, it was acknowledged that Joseph found job stress a causative factor, but that it was "vastly outweighed" by petitioner's other risk factors. Thus, we find that the Retirement System's evidence did not exclude petitioner's employment as a causative factor and, therefore, was insufficient to overcome the statutory presumption ( see Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d 1075, 1075-1076; Matter of Skae v Regan, 208 AD2d 1028, 1029-1030). At this point, Joseph estimated that petitioner's disability was 5% to 10% employment-related.

  5. In re Walters v. Dinapoli

    82 A.D.3d 1487 (N.Y. App. Div. 2011)   Cited 8 times

    " Regarding petitioner's occupation, the expert opined that petitioner's heart condition was not causally related to the performance of his work duties and, while acknowledging that any work-related stress suffered by petitioner may have exacerbated the symptoms of his coronary artery disease, such stress did not cause the disease. Inasmuch as the expert opined that petitioner's heart disease was not caused by his occupation or related stress, but rather by the existence of numerous cardiac risk factors unrelated to his job, we conclude that the presumption was satisfactorily rebutted ( see Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296; Matter of Lawless v DiNapoli, 56 AD3d 1114, 1115-1116; Matter of Bryant v Hevesi, 41 AD3d 930, 931-932; Matter of Krupinski v McCall, 302 AD2d 676, 677; cf. Matter of Parcell v Office of NY. State Comptroller, 29 AD3d 1075, 1075-1076). Petitioner's remaining arguments have been considered and found to be without merit.

  6. In re Mazzotte

    70 A.D.3d 1233 (N.Y. App. Div. 2010)   Cited 8 times

    The decision further indicates that an expert physician for the New York State and Local Employees' Retirement System testified regarding his 2001 examination, when in fact the expert's written report was admitted into evidence without testimony. In view of these errors, we may not consider petitioner's contention that the Retirement System's evidence was insufficient to meet its burden to rebut the "heart presumption" ( see Retirement and Social Security Law § 507-b [c]; Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d 1075, 1075). Our review of respondent's determination is limited to the grounds on which it relied; when that basis is inadequate, we may not substitute other grounds ( see Matter of Montauk Improvement v Proccacino, 41 NY2d 913, 913-914).

  7. Bryant v. Hevesi

    41 A.D.3d 930 (N.Y. App. Div. 2007)   Cited 14 times

    This expert similarly testified at the hearing. In particular, he unequivocally opined that petitioner's heart disease was not caused by his job or job-related stress, but rather by his history of multiple, major risk factors ( cf. Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d 1075; Matter of Skae v Regan, 208 AD2d 1028, 1029; Matter of Di Laura v Regan, 189 AD2d 994, 995-996). We are unpersuaded that concessions made by this expert during cross-examination concerning heart disease causation generally somehow rendered his otherwise adequate testimony inadequate.

  8. Walsh v. DiNapoli

    83 A.D.3d 1278 (N.Y. Sup. Ct. 2011)

    In fact, in the Hearing Officer's decision, it was acknowledged that Joseph found job stress a causative factor, but that it was “vastly outweighed” by petitioner's other risk factors. Thus, we find that the Retirement System's evidence did not exclude petitioner's employment as a causative factor and, therefore, was insufficient to overcome the statutory presumption ( see Matter of Parcell v. Office of N.Y. State Comptroller, 29 A.D.3d 1075, 1075–1076, 813 N.Y.S.2d 827 [2006];Matter of Skae v. Regan, 208 A.D.2d 1028, 1029–1030, 617 N.Y.S.2d 237 [1994] ). At this point, Joseph estimated that petitioner's disability was 5% to 10% employment-related.