We confirm. “In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties” (Matter of Pellittiere v. New York State & Local Police & Fire Retirement Sys., 121 A.D.3d 1143, 1144, 993 N.Y.S.2d 586 [2014] [internal quotation marks and citation omitted]; see Matter of Griffin v. DiNapoli, 117 A.D.3d 1355, 1356, 986 N.Y.S.2d 695 [2014], lv. denied 24 N.Y.3d 903, 2014 WL 4548469 [2014] ; Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 [2014] ; Matter of Cantelmo v. New York State Comptroller, 105 A.D.3d 1306, 1307, 963 N.Y.S.2d 775 [2013] ; see also Matter of Bates v. New York State & Local Police & Fire Retirement Sys., 120 A.D.3d 872, 873, 991 N.Y.S.2d 172 [2014] ). Although the parties debate whether both the December 2005 and February 2008 incidents should be considered and, further, whether such incidents constitute accidents within the meaning of Retirement and Social Security Law § 363, these issues need not detain us, as petitioner is not entitled to either accidental disability retirement benefits (see Matter of Anderson v. DiNapoli, 126 A.D.3d 1278, 1279, 6 N.Y.S.3d 189 [2015] ; Matter of Occhino v. DiNapoli, 117 A.D.3d 1156, 1156, 984 N.Y.S.2d 490 [2014] ; Matter of Cooke v. DiNapoli, 96 A.D.3d 1340, 1341, 947 N.Y.S.2d 680 [2012] ; Matter of Capraro v. DiNapoli, 91 A.D.3d 1020, 1021, 936 N.Y.S.2d 372 [2012] ) or performance of duty disability retirement benefits (see Matter of O'Shaughnessy v. New York S
The Comptroller accepted the Hearing Officer's findings and conclusions in relevant part, prompting petitioner to seek review via this CPLR article 78 proceeding. “In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties” (Matter of Byrne v. DiNapoli, 85 A.D.3d 1530, 1531, 926 N.Y.S.2d 222 [2011] ; see Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 [2014] ). Here, several cardiologists examined petitioner and disagreed as to the degree and permanency of his disability.
Respondent Comptroller adopted the Hearing Officer's findings and denied the applications, prompting the commencement of this CPLR article 78 proceeding. We confirm. “As an applicant for accidental and performance of duty disability retirement benefits, petitioner bore the burden of proving that he is permanently incapacitated from performing his job duties” (Matter of Cantelmo v. New York State Comptroller, 105 A.D.3d 1306, 1307, 963 N.Y.S.2d 775 [2013] [internal quotation marks and citation omitted]; accord Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 [2014] ). The Comptroller credited the report of neurologist James Storey, who noted that petitioner had a cervical disk herniation but nevertheless found no evidence of radiculopathy and no neurologic disability.
According to Mazella, provided that petitioner regained his strength in a postsurgical rehabilitation program, he could then perform all the usual activities required of a firefighter. Inasmuch as respondent "is vested with the authority to weigh conflicting medical evidence and to credit the opinion of one expert over another" (Matter of Rolandelli v. Hevesi, 27 A.D.3d 945, 946, 811 N.Y.S.2d 483 [2006] ; see Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 [2014] ), substantial evidence supports respondent's determination that petitioner did not establish that he was permanently disabled because a safe surgical procedure exists that could alleviate his disability (see Matter of Califano v. DiNapoli, 147 A.D.3d 1177, 1179, 47 N.Y.S.3d 484 [2017] ; Matter of Wilkinson v. DiNapoli, 86 A.D.3d 851, 853, 927 N.Y.S.2d 463 [2011] ).
“In connection with any application for ... performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties” (Matter of Byrne v. DiNapoli, 85 A.D.3d 1530, 1531, 926 N.Y.S.2d 222 2011 [citations omitted]; accord Matter of Pellittiere v. New York State & Local Police & Fire Retirement Sys., 121 A.D.3d 1143, 1144, 993 N.Y.S.2d 586 2014 ). Moreover, respondent “is vested with the authority to resolve conflicts in the medical evidence and to credit the opinion of one expert over another, and its determination will not be disturbed when supported by substantial evidence” (matter of occhino v. dinapOli, 117 a.d.3d 1156, 1156, 984 n.y.s.2d 490 2014; see Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 2014 ). Here, petitioner presented the report of his treating cardiologist, Kenneth Kaplan, who opined that petitioner should not return to his usual police duties due to the stress involved in the job and that petitioner was permanently disabled.
We confirm. As the applicant, petitioner bore the burden of establishing that she was permanently incapacitated from performing her duties as a firefighter ( see Matter of Pavone v. DiNapoli, 114 A.D.3d 1012, 1013, 980 N.Y.S.2d 174 [2014] ). “Where, as here, there is conflicting medical evidence, [the Comptroller] is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another” ( Matter of Gatewood v. DiNapoli, 60 A.D.3d 1266, 1267, 876 N.Y.S.2d 180 [2009] [citation omitted]; accord Matter of Arroyo v. DiNapoli, 93 A.D.3d 980, 981, 939 N.Y.S.2d 670 [2012] ). The Comptroller credited the medical opinion of Austin Leve, the board-certified orthopedic surgeon who testified for respondent, over the opinions of petitioner's treating orthopedic surgeon and her rheumatologist, and we disagree with petitioner's contention that Leve's opinion lacked a proper foundation.