IN RE: Gary R. DeFILIPPO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Gary R. DeFILIPPO, Petitioner, v. Alan G. HEVESI, as State Comptroller, Respondent.

Decided: August 10, 2006

Before:  CARDONA, P.J., CREW III, SPAIN, ROSE and LAHTINEN, JJ. Gary R. DeFilippo, New York City, petitioner pro se. Eliot Spitzer, Attorney General, Albany (William E. Storrs of counsel), for respondent.

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 denied petitioner's application for accidental disability retirement benefits.

Petitioner, a court officer, applied for accidental disability retirement benefits for injuries that he sustained to his knees and back during three separate incidents wherein he was called upon to control unruly people in the courthouse.   That application ultimately was denied by respondent on the basis that, among other things, petitioner was not permanently incapacitated from working.   Petitioner thereafter commenced this CPLR article 78 proceeding challenging respondent's determination.

Substantial evidence in the record supports respondent's determination that petitioner was not permanently incapacitated from his employment (see Matter of English v. McCall, 6 A.D.3d 923, 924-925, 774 N.Y.S.2d 879 [2004] ).   Leon Sultan, a board-certified orthopedic surgeon who twice examined petitioner and reviewed his medical history at the request of the New York State and Local Retirement System, opined that petitioner was not permanently incapacitated from performing his duties as a court officer.   Sultan testified that petitioner was “orthopedically stable and neurologically intact” with regard to his knees and back.   Specifically, Sultan testified that aside from voluntary resistance from petitioner, he did not note any objective evidence of ongoing orthopedic impairment or functional limitation.   To the extent that petitioner's orthopedic expert offered a contrary opinion, respondent was “ ‘vested with the authority to weigh the conflicting opinions of medical experts and to credit the opinion of one expert over that of another’ ” (Matter of Hoehn v. Hevesi, 14 A.D.3d 761, 762, 787 N.Y.S.2d 496 [2005], lv. denied 4 N.Y.3d 708, 797 N.Y.S.2d 420, 830 N.E.2d 319 [2005], quoting Matter of Collins v. New York State & Local Retirement Sys., 5 A.D.3d 817, 818, 772 N.Y.S.2d 622 [2004] ).   Petitioner's remaining arguments, including whether one of the three underlying incidents constitutes an accident within the meaning of the Retirement and Social Security Law, are either without merit or have been rendered academic in view of our disposition herein.

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

CREW III, J.

CARDONA, P.J., SPAIN, ROSE and LAHTINEN, JJ., concur.

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