                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520737
________________________________

In the Matter of EUGENE L.
   PIERCE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   January 8, 2016

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

                             __________


      Edelstein & Grossman, New York City (Jonathan I. Edelstein
of counsel), for petitioner.

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

                             __________


Garry, 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 accidental and performance of duty
disability retirement benefits.

      Petitioner, a former State Trooper, applied for accidental
and performance of duty disability retirement benefits based upon
injuries to his back, neck and left knee sustained in a
work-related car accident that occurred in 2003. Thereafter,
petitioner filed additional applications for the same benefits
based upon posttraumatic stress disorder and depression.
                              -2-                520737

Petitioner's applications were denied, and petitioner sought a
hearing and redetermination. A Hearing Officer denied the
applications and, upon review, respondent Comptroller affirmed.
This Court subsequently annulled that determination, as it had
"fail[ed] to set forth findings with regard to petitioner's
claimed incapacity due to his psychiatric condition" and remitted
for further administrative proceedings (Matter of Pierce v
Murray, 87 AD3d 1260, 1260 [2011]). Following remittal, the
matter was reassigned and again denied on the ground that
petitioner is not permanently disabled from performing his duties
as a police officer due to either a physical or psychiatric
condition. The Comptroller affirmed. Petitioner commenced this
CPLR article 78 proceeding, and, finding that the petition raised
an issue of substantial evidence, Supreme Court transferred the
proceeding to this Court.

      We confirm. "As an applicant for accidental disability
retirement benefits, petitioner bore the burden of proving that,
among other things, []he is permanently incapacitated from
performing h[is] job duties" (Matter of Anderson v DiNapoli, 126
AD3d 1278, 1278 [2015] [citations omitted]; see Matter of Weldon
v DiNapoli, 120 AD3d 869, 869 [2014], lv denied 24 NY3d 914
[2015]). Petitioner testified at the hearing that, as a result
of the accident, he suffers from physical limitations in his
neck, back and left knee that prevent him from performing the
duties of a State Trooper. Petitioner further testified that his
psychiatric diagnoses preclude him from performing the duties of
a State Trooper in that he suffers from, among other things,
insomnia, recurrent memories of the accident and severe
depression. Medical records and reports from petitioner's
treating physicians and mental health practitioners that
supported these claims were admitted into evidence.

      John Mazella, an orthopedic surgeon, examined petitioner
and reviewed his medical records for the New York State and Local
Police and Fire Retirement System and concluded that petitioner
was not permanently disabled as a result of any orthopedic
injury. Mazella testified that petitioner's back and neck
conditions were not clinically significant or disabling and that
petitioner was a candidate for reasonably safe knee surgery that
would repair his condition and allow him to return to full-duty
                              -3-                520737

work as a State Trooper. Mazella noted that two of petitioner's
treating orthopedic surgeons had recommended that petitioner
undergo this surgery (see Matter of Cepeda v New York State
Comptroller, 115 AD3d 1146, 1147 [2014], lv denied 23 NY3d 906
[2014]; Matter of Ahmed-Parkin-Chirco v New York State
Comptroller, 84 AD3d 1684, 1685 [2011], lv denied 17 NY3d 711
[2011]). We reject petitioner's contention that he was taken
unfairly by surprise by this testimony, and, thus, that it should
have been precluded. The proposed surgery was addressed in the
context of the recommendations made by petitioner's treating
physicians and, thus, included in his medical records.

      Petitioner also submitted medical records and reports
documenting his psychiatric conditions, and the Retirement System
presented the opposing testimony of Michael Lynch, a
psychiatrist, and reports that Lynch had prepared in 2006 and
2012. Lynch conducted a psychiatric examination of petitioner in
2006 and, following a review of petitioner's medical records and
reports, opined that petitioner did not suffer from any
psychiatric condition that rendered him permanently unable to
perform the duties of a State Trooper. Contrary to petitioner's
claim, the Retirement System was properly permitted to submit
Lynch's 2012 report to address the updated psychiatric records
that petitioner had been allowed to present after remittal.

      The Comptroller has the exclusive authority to resolve
conflicting medical evidence and to credit one expert's opinion
over another (see Matter of Cepeda v New York State Comptroller,
115 AD3d at 1146-1147; Matter of Arroyo v DiNapoli, 93 AD3d 980,
981 [2012]). The opinions of the Retirement System's orthopedic
and psychiatric experts constituted substantial evidence
supporting the determination that petitioner failed to establish
that he was permanently incapacitated due to an orthopedic or
psychiatric disability (see Matter of Anderson v DiNapoli, 126
AD3d at 1279; Matter of Hulse v DiNapoli, 70 AD3d 1235, 1236-1237
[2010]).

     Peters, P.J., Egan Jr., Devine and Clark, JJ., concur.
                              -4-                  520737

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
