New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller

Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the stress of his employment duties which included dealing with inmate riots, threats, attacks, and administrative pressures. Petitioner was found to be permanently disabled but his petition was denied on the ground that his disability was not due to performance of duties. The Hearing Officer determined petitioner’s disability was congenital and denied his application for performance of duty disability retirement benefits. The respondent accepted this determination and petitioner commenced this Article 78 appeal to annul the determination.

The petitioner contended that the Hearing Officer’s decision contained significant factual errors such as stating that petitioner had high blood pressure and diabetes with no evidence to support this finding. Additionally, the decision indicated that an expert physician testified regarding his 2001 examination which is false. The physician never testified but only submitted a written report. Due to these factual errors, the Court ruled that respondent failed to present an adequate or accurate statement of the factual basis of its determination and therefore the determination must be annulled.

Accordingly, the Supreme Court annulled the determination, without costs, and remitted the matter to respondent for further proceedings.

Read more about this Article 78 performance of duty disability retirement benefits case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Petitioner, Rosina Bautista, was as a maintenance worker at New Rochelle High School in Westchester County. She sustained various injuries occurring between 1994 and 2001 and ceased working in May of 2001 due to these injuries. She then applied for ordinary disability retirement benefits and was denied on the grounds that she was not permanently disabled from performing her job duties. Petitioner then brought about this Article 78 proceeding to review the determination denying her ordinary disability retirement benefits.

The Court disagreed with petitioner’s argument that the Hearing Officer’s decision adopted by respondent lacked factual basis for denying her application. The decision was based on the expert medical examinations of three physicians who examined petitioner. All three doctors found petitioner not permanently disabled and while her personal physician reached a different conclusion, the respondent has the authority to resolve conflicts in medical evidence and to choose the opinion of one expert over that of another. The Retirement System’s experts’ opinions were rational and based on facts and therefore the Court declined to disturb it.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 disability retirement benefits case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Theodore Tomita v Thomas P. DiNapoli, as Comptroller of the State of New York

Petitioner brought about this Article 78 appeal to review a determination denying his application for accidental disability benefits. Petitioner was a police lieutenant employed by the City of Newburgh Police Department in Orange County. He tripped on a curb after working an overnight shift. Petitioner then filed for accidental disability benefits and was denied. He then requested a redetermination and a hearing. At the hearing, the Hearing Officer ruled in favor of Petitioner and determined that the incident qualified as an accident within the meaning of Retirement and Social Security Law §363. The Respondent then appealed the decision and it was reversed which led to Petitioner commencing this Article 78 appeal.

The Court notes that an accident within the meaning of Retirement and Social Security Law §363 is unexpected and not as a result of an activity performed during normal work duties. The burden of proof is on the Petitioner and since Petitioner admitted to being familiar with the parking lot and that the streetlights had been off other times, he could have reasonably anticipated the hazard. Therefore, Petitioner was injured as a result of his own misstep and not eligible for accidental disability benefits.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 accidental disability retirement benefits case.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Gina M. Hammond-Timpano v New York State and Local Retirement System

In this Article 78 proceeding, Petitioner commenced an appeal to review a determination of the Comptroller denying her application for disability retirement benefits.

Petitioner was exposed to fireproofing materials twice during the summer of 1992 while working as a stenographer for the Utica City School District. She sought medical treatment for physical maladies including difficulty breathing, burning in her eyes and mouth and swelling in her hands. In 1993, after she began experiencing these symptoms every time she came into contact with other materials and office supplies, Petitioner stopped working permanently.

In 2002, Petitioner applied for disability retirement benefits and was denied. She then requested a hearing and redetermination. The Hearing Officer ruled against Petitioner, stating that she failed to establish permanent incapacitation from performing the duties of her job. The Comptroller accepted the Hearing Officer’s finding which led to the commencement of this Article 78 proceeding.

In her appeal, Petitioner presented medical records from five treating physicians. Two of these doctors opined that she was permanently disabled from her exposure to chemicals but one subsequently stated that she would be able to return to work as long as she did not come into contact with any further respiratory hazards. The other doctor admitted that there was inadequate medical research to prove causation. Respondent provided two independent medical examiners who ruled Petitioner not permanently disabled. The Court felt that since there was conflicting medical evidence, the Comptroller had the authority to weigh the evidence and decide which opinion to credit. Since the Comptroller’s decision was supported by substantial evidence, the Court refused to overturn it.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 Disability Retirement Benefits case.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Timothy Kennedy v New York State and Local Police and Fire Retirement System

Petitioner Timothy Kennedy filed this Article 78 appeal to review the determination of the Comptroller denying his applications for performance of duty and ordinary disability retirement benefits. In 2000, after working as a police detective for 12 years, petitioner suffered from various heart, gastrointestinal and psychological problems causing him to stop working. Petitioner then filed applications for ordinary disability retirement benefits and performance of duty disability retirement benefits. His applications were denied and then at the hearing, the Hearing Officer concluded petitioner was not entitled to either benefits because he was not permanently incapacitated from performing his duties. Petitioner then filed this Article 78 appeal.

The Comptroller is allowed to determine which opinion to credit in the case of conflicting medical opinions by different medical experts. In this case, conflicting opinions existed regarding whether petitioner’s psychological problems and irritable bowel syndrome prevented him from performing his duties as a police detective. Since one medical expert provided evidence that petitioner did not suffer from permanent incapacitation due to his afflictions, the Comptroller has sufficient evidence to support his decision.

Accordingly, the Court confirmed the determination, without costs, and dismissed the petition.

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