                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    518081
________________________________

In the Matter of MICHAEL X.
   WELDON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   June 3, 2014

Before:   Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                             __________


      Buckley, Mendleson, Criscione & Quinn, PC, Albany (Brendan
G. Quinn of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.

                             __________


Peters, P.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 denied petitioner's
application for State Police disability retirement benefits.

      Petitioner, a State Police investigator, applied for State
Police disability retirement benefits, claiming that he is
permanently incapacitated from performing his job duties due to
injuries suffered to his left shoulder sustained in incidents
that occurred in 2003 and 2008. The application was initially
denied and petitioner requested a hearing and redetermination.
Following hearings, the Hearing Officer upheld the denial of the
                              -2-                518081

application, concluding that petitioner had not established that
he was permanently incapacitated from performing his job duties.
Respondent upheld that determination and this CPLR article 78
proceeding ensued.

      We confirm. "An applicant for disability retirement
benefits bears the burden of proving that he or she is
permanently incapacitated from performing his or her job duties"
(Matter of Cepeda v New York State Comptroller, 115 AD3d 1146,
1146 [2014], lv denied ___ NY3d ___ [June 30, 2014] [citations
omitted]). Here, petitioner submitted his medical records, which
contain evidence of a disability, but lack a finding of
permanency (see Matter of Weaver v DiNapoli, 108 AD3d 974, 975
[2013]; Matter of Carmody-Kapral v New York State & Local
Retirement Sys., 105 AD3d 1212, 1212 [2013]).1 In contrast, the
New York State and Local Police and Fire Retirement System
presented the medical reports and testimony of a neurologist and
an orthopedic surgeon, both of whom examined petitioner and
reviewed his records. The neurologist found no objective
evidence of a neurologic condition that would indicate a
permanent disability. The orthopedic surgeon opined that
petitioner suffers from chronic regional pain syndrome and had a
temporary total disability. He further opined that, although
petitioner had undergone physical therapy, that therapy was
focused on pain relief, and that his condition could improve with
aggressive physical therapy aimed at functional improvement.
Although he believed that petitioner's prognosis for returning to
work was only fair, he could not find that his condition was
permanent. Accordingly, respondent's determination is supported
by substantial evidence and will not be disturbed (see Matter of
Weaver v DiNapoli, 108 AD3d at 975; Matter of Cooke v DiNapoli,
96 AD3d 1340, 1341 [2012]).



    1
        Although petitioner testified that the Workers'
Compensation Board and Social Security Administration had found
him to be permanently incapacitated, such determinations are not
binding upon respondent (see Matter of Zuckerberg v New York
State Comptroller, 46 AD3d 1057, 1059 [2007], lv denied 10 NY3d
712 [2008]).
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     Garry, Rose, Egan Jr. and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
