Opinion
2011-04-28
In the Matter of Timothy P. McAULIFFE, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Bartlett, McDonough, Bastone & Monaghan, L.L.P., White Plains (Ryan K. Allen of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Bartlett, McDonough, Bastone & Monaghan, L.L.P., White Plains (Ryan K. Allen of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.
KAVANAGH, 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 which, among other things, denied petitioner's application for performance of duty disability retirement benefits.
Petitioner was employed as a criminal investigator for the Westchester County District Attorney. He suffered a myocardial infarction in 1997 and, as is relevant here, applied for performance of duty disability retirement benefits in 2006 ( seeRetirement and Social Security Law §§ 63–e, 63–f). The New York State and Local Employees' Retirement System denied the application, finding that petitioner was permanently incapacitated from performing his duties, but that his disability was not a natural and proximate result of them. Petitioner sought a hearing and redetermination, following which a Hearing Officer agreed with the Retirement System. Respondent adopted the Hearing Officer's findings and denied petitioner's application, and this CPLR article 78 proceeding ensued.
The parties do not dispute that petitioner has a heart condition that permanently incapacitates him from performing his duties, and petitioner relies upon the statutory presumption contained in Retirement and Social Security Law § 63–f to establish that the disability arose from his job duties. Accordingly, the sole issue before us is whether the Retirement System rebutted that presumption by competent medical evidence ( see Matter of Rivera v. DiNapoli, 78 A.D.3d 1295, 1296, 911 N.Y.S.2d 206 [2010];Matter of Feldon v. New York State Comptroller, 69 A.D.3d 1092, 1092–1093, 894 N.Y.S.2d 179 [2010],lv. denied15 N.Y.3d 702, 2010 WL 2572394 [2010] ). In that regard, the Retirement System offered the report of Richard Cantor, a physician who examined petitioner and reviewed his medical records. Cantor acknowledged that petitioner's 1997 myocardial infarction could have been caused by an incident wherein a large dog unexpectedly jumped on him while working. However, Cantor opined that petitioner's disability did not arise from the myocardial infarction, but rather from coronary artery disease that was entirely attributable to his history of cigarette smoking. Notwithstanding evidence in the record that could justify a different result, Cantor's rational and fact-based opinion provided substantial evidence to support respondent's determination that the heart presumption had been rebutted ( see Matter of Tucker v. McCall, 262 A.D.2d 916, 917–918, 693 N.Y.S.2d 654 [1999];Matter of McComb v. Regan, 180 A.D.2d 862, 863, 579 N.Y.S.2d 240 [1992];Matter of Nerney v. New York State Policemen's & Firemen's Retirement Sys., 156 A.D.2d 775, 775–776, 549 N.Y.S.2d 198 [1989],lv. denied75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619 [1990] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.