IN RE: Edward J. SAVIO (2006)

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 Comptroller which denied petitioner's applications for disability retirement benefits and performance of duty disability retirement benefits.

Petitioner, a correction officer at Lakeview Shock Correctional Facility in Chautauqua County, was injured in December 1999 while attempting to subdue an unruly inmate.   He thereafter filed applications for disability retirement benefits and performance of duty disability retirement benefits.   Petitioner's applications were denied on the basis that he was not permanently incapacitated from performing his duties as a correction officer.   This CPLR article 78 proceeding ensued and we now confirm.

It was incumbent upon petitioner to demonstrate that he was permanently incapacitated from engaging in his employment duties in order to establish entitlement to the disability retirement benefits he sought (see Matter of Macari v. Hevesi, 17 A.D.3d 911, 912, 793 N.Y.S.2d 287 [2005];  Matter of Johnson v. Hevesi, 10 A.D.3d 835, 836, 782 N.Y.S.2d 141 [2004] ).   Although it is true that petitioner's treating orthopedist opined that he had a permanent disability relative to his cervical and lumbar spine, an orthopedist and neurologist testifying on behalf of the New York State and Local Retirement System opined to the contrary, indicating that, based upon their examinations of petitioner and reviews of his medical history, he did not have any disability which rendered him incapacitated from performing his job duties.   Accordingly, inasmuch as respondent Comptroller was free to selectively credit the “ ‘articulated, rational and fact-based medical opinion[s]’ ” of the Retirement System's experts over the opinion proffered by petitioner's treating physician (Matter of Macari v. Hevesi, supra at 912, 793 N.Y.S.2d 287, quoting Matter of Harper v. McCall, 277 A.D.2d 589, 590, 715 N.Y.S.2d 494 [2000] ), and considering that substantial evidence supports the determination, we decline to disturb it (see Matter of Stern v. Hevesi, 12 A.D.3d 831, 832, 783 N.Y.S.2d 889 [2004];  Matter of Dann v. McCall, 300 A.D.2d 790, 791, 751 N.Y.S.2d 638 [2002], lv. dismissed 100 N.Y.2d 553, 763 N.Y.S.2d 807, 795 N.E.2d 32 [2003] ).   Petitioner's remaining arguments, to the extent not specifically addressed herein, have been examined and found to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

CARDONA, P.J.

SPAIN, CARPINELLO, ROSE and KANE, JJ., concur.