                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   522693
________________________________

In the Matter of STEVEN M.
   MOLLOY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   October 11, 2016

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                             __________


      Lippes Mathias Wexler Friedman LLP, Albany (Thomas D. Latin
of counsel), for petitioner.

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

                             __________


Clark, 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 Comptroller denying
petitioner's application for performance of duty disability
retirement benefits.

      Petitioner worked as a correction officer for approximately
7½ years and, during this time, was involved in three work-
related incidents in which he injured his left shoulder. The
first occurred on June 6, 2008 when petitioner was assisting
other correction officers in restraining a combative inmate. The
second incident occurred in August 2009 when petitioner removed a
                              -2-                522693

package from a shelf while at work and experienced a pop in his
left shoulder. The third incident occurred in November 2010
while petitioner was lifting a 50-pound package. Following the
third incident, petitioner underwent surgeries to repair a labral
tear in his left shoulder, but was never able to return to work
and his employment was ultimately terminated.

      In August 2011, petitioner filed an application for
performance of duty disability retirement benefits pursuant to
Retirement and Social Security Law § 507-b. Following an initial
determination denying his application, petitioner requested a
hearing and redetermination. During further proceedings,
respondent New York State and Local Employees' Retirement System
conceded that petitioner was permanently disabled, and the
parties agreed that the only issue to be resolved was whether the
June 6, 2008 incident was the cause of petitioner's disability.
The Hearing Officer concluded that it was not, citing the medical
evidence, including the report of Bradley Wiener, a physician who
conducted an independent medical examination of petitioner.
Respondent Comptroller adopted the Hearing Officer's decision and
denied petitioner's application, and this CPLR article 78
proceeding ensued.

      The burden was on petitioner to establish that his
disability was the "natural and proximate result" of the June 6,
2008 incident (Retirement and Social Security Law § 507-b [a];
see Matter of Palmateer v DiNapoli, 117 AD3d 1228, 1229 [2014],
lv denied 24 NY3d 901 [2014]; Matter of Calhoun v New York State
& Local Employees' Retirement Sys., 112 AD3d 1172, 1173 [2013]).
Where conflicting medical evidence is presented, the Comptroller
retains the exclusive authority to weigh the evidence and credit
the opinion of one medical expert over that of another, provided
that "the credited expert articulates a rational and fact-based
opinion founded upon a physical examination and review of the
pertinent medical records" (Matter of Calhoun v New York State &
Local Employees' Retirement Sys., 112 AD3d at 1174 [internal
quotation marks and citations omitted]; see Matter of Marello v
DiNapoli, 111 AD3d 1052, 1053 [2013]).

      Here, petitioner put forth the opinion of Andrew Beharrie,
an orthopedic surgeon, to establish that his disability was
                              -3-                522693

causally related to the June 6, 2008 incident and not to the
incidents occurring in August 2009 and November 2010. Beharrie
stated that, when he first examined petitioner in January 2009,
petitioner had been out of work since September 2008 and appeared
to suffer from bursitis and a possible labral tear in the left
shoulder. Beharrie stated that he cleared petitioner to return
to a light duty assignment in April 2009, but indicated that,
following the incidents in August 2009 and November 2010,
petitioner's shoulder condition had significantly worsened,
causing him to miss work and to require surgery. Based upon his
treatment of petitioner, Beharrie stated that the June 6, 2008
incident "started [petitioner's] downward trend in terms of his
symptoms" and "allowed for the subsequent deterioration with
relatively minor trauma." Thus, Beharrie opined that the June 6,
2008 incident was the event that caused petitioner's disability.

      The Retirement System presented the contrary medical
opinion of Wiener, who examined petitioner and reviewed his
medical records, as well as other pertinent documentation.
Significantly, Wiener observed that petitioner did not undergo
any medical treatment immediately following the June 6, 2008
incident, that he returned to work in a full-duty capacity,
without any restrictions, the next day and that the employee
accident report did not disclose that petitioner sustained any
injury at the time of his evaluation at the facility health
center (see Matter of Ashley v DiNapoli, 97 AD3d 1057, 1059
[2012]). In view of this, and based upon his physical
examination, Wiener opined that the June 6, 2008 incident was not
the cause of petitioner's permanent disability, but that
petitioner's need for surgical intervention was due to the two
subsequent incidents that occurred in August 2009 and November
2010. Wiener's opinion was consistent with the reports submitted
by two other physicians who examined petitioner in connection
with his claim for workers' compensation benefits.

      Despite petitioner's claim to the contrary, we find that
Wiener provided a rational, fact-based medical opinion supported
by his physical examination of petitioner, as well as
documentation in the record, and that the Comptroller was
entitled to rely upon Wiener's medical opinion in determining
that the June 6, 2008 incident was not the cause of petitioner's
                              -4-                  522693

disability (see Matter of Ortiz v DiNapoli, 98 AD3d 1224, 1225
[2012]; Matter of Ashley v DiNapoli, 97 AD3d at 1059; compare
Matter of King v DiNapoli, 75 AD3d 793, 794-795 [2010]). Given
that substantial evidence supports the determination, we find no
reason to disturb it.

     Peters, P.J., Lynch, Devine and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
