                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518298
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In the Matter of MICHAEL M.
   PELLITTIERE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE AND LOCAL
   POLICE AND FIRE RETIREMENT
   SYSTEM,
                    Respondent.
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Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


      Cully, Marks, Tannenbaum & Pezzulo, LLP, Rochester (Glenn
E. Pezzulo of counsel), for petitioner.

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

                             __________


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

      Petitioner began working as a firefighter in 1990, and a
physical examination at that time revealed no evidence of any
heart condition. He was thereafter found to have intermittent
atrial fibrillation. The condition became chronic over time and,
as a result, he was removed from his normal duties in 2008 and
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assigned to work as a driver for volunteer firefighters. He
performed that work for several months and then applied for
accidental and performance of duty disability retirement
benefits, relying in part upon the statutory presumption that his
heart condition "was incurred in the performance and discharge of
duty and the natural and proximate result of an accident, unless
the contrary be proved by competent evidence" (Retirement and
Social Security Law § 363-a [1]). Respondent denied both
applications, and petitioner requested a hearing and
redetermination. The Hearing Officer denied both applications
upon the bases that petitioner was not permanently incapacitated
from performing his duties and that, in any event, the statutory
presumption had been rebutted in all respects and petitioner had
not established his entitlement to either retirement benefit.
The Comptroller accepted the Hearing Officer's findings and
conclusions in relevant part, prompting petitioner to seek review
via this CPLR article 78 proceeding.

      "In connection with any application for accidental or
performance of duty disability retirement benefits, the applicant
bears the burden of proving that he or she is permanently
incapacitated from the performance of his or her job duties"
(Matter of Byrne v DiNapoli, 85 AD3d 1530, 1531 [2011]; see
Matter of Pavone v DiNapoli, 114 AD3d 1012, 1013 [2014]). Here,
several cardiologists examined petitioner and disagreed as to the
degree and permanency of his disability. The cardiologists did
agree, however, that petitioner's heart condition was
asymptomatic. While the employer nevertheless found petitioner
to be medically unfit for standard firefighting duties due to
national firefighting standards, that determination was not
binding upon the Comptroller (see Retirement and Social Security
Law § 74 [b]; Matter of Weaver v DiNapoli, 108 AD3d 974, 975 n
[2013]; Matter of Keller v Regan, 212 AD2d 856, 858 [1995]). The
Comptroller instead credited the reports and testimony of
cardiologist Adel Soliman, who examined petitioner and opined
that his condition was asymptomatic and "would not be a hindrance
from performing" his normal work duties. Thus, despite the
presence of medical evidence in the record that could support a
different result, Soliman's opinion constitutes substantial
evidence to support the Comptroller's determination that
petitioner was not permanently incapacitated from performing his
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duties (see Matter of Pavone v DiNapoli, 114 AD3d at 1013; Matter
of Sedlak v DiNapoli, 84 AD3d 1675, 1677 [2011]; Matter of
Bladykas v New York State & Local Employees' Retirement Sys., 75
AD3d 749, 751 [2010]). Inasmuch as "petitioner failed to meet
his threshold burden of establishing that he was permanently
incapacitated," we need not address his arguments regarding the
presumption set forth by Retirement and Social Security Law
§ 363-a (Matter of Byrne v DiNapoli, 85 AD3d at 1531 n; see
Matter of Bladykas v New York State & Local Employees' Retirement
Sys., 75 AD3d at 751).

     Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
