                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    521665
________________________________

In the Matter of MATTHEW
   ALIPERTI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Michael
Catallo of counsel), for petitioner.

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

                             __________


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

      Petitioner, a former custodian for the Hawthorne Cedar
Knolls School District, applied for performance of duty
disability retirement benefits claiming that he was permanently
incapacitated and unable to perform his regular job duties due to
injuries to his neck and back. Petitioner's application was
denied, and he requested a hearing and redetermination.
                              -2-                521665

Following that hearing, a Hearing Officer found that petitioner
is not permanently disabled from performing his duties as a
custodian and, upon review, respondent affirmed. Petitioner then
commenced this CPLR article 78 proceeding, which was transferred
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 [his] 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]). Moreover, it is well settled that respondent is vested
with the authority to resolve conflicting medical evidence in
that regard and to credit one expert's opinion over another, and
his determination will be sustained if supported by substantial
evidence (see Matter of Cepeda v New York State Comptroller, 115
AD3d 1146, 1146-1147 [2014], lv denied 23 NY3d 906 [2014]; Matter
of Arroyo v DiNapoli, 93 AD3d 980, 981 [2012]). Here, consistent
with petitioner's testimony that he takes 13 prescribed
medications to treat, among other things, the herniated discs in
his back and neck, which substantially limit his mobility and
dexterity, cause him pain and produce numbness in his
extremities, Emad Soliman, petitioner's treating neurologist,
testified that petitioner suffers from, among other things,
cervical or lumbar radiculopathy that renders him permanently
disabled and unable to perform his job duties as a custodian.
Similarly, Eugene Liu, a physician who treated petitioner's
reported pain with numerous epidural steroid injections and
lumbar facet blocks, also concluded that petitioner is
permanently disabled and unable to perform his job duties.

      In stark contrast to the views expressed by petitioner's
treating physicians, Elliott Gross, a board-certified neurologist
who conducted a physical examination of petitioner and reviewed
the medical records and history provided by petitioner, concluded
that petitioner had symptoms of lumbar radiculopathy, but found
no evidence of cervical radiculopathy or herniations to his back
or spine and that he was, therefore, not permanently
incapacitated and able to work as a custodian. Gross testified
that his physical examination of petitioner did not reveal any
                              -3-                521665

evidence of disabling conditions or substantiate a pathological
diagnosis underlying petitioner's reported symptoms and that
petitioner had average and moderate degenerative disc disease for
his age. Gross further opined that his examination of petitioner
revealed that he had normal strength, no atrophy of the arms or
legs, no evidence of loss of function in any of his muscles and
no balance issues.

      The Hearing Officer credited Gross's conclusions over those
of petitioner's physicians, noting that there was an "almost
total disconnect" between petitioner's objectively verifiable
complaints and his subjective ones and that the credibility of
petitioner's physicians was suspect insofar as they, among other
things, subjected petitioner to a "shockingly inappropriate
regimen of testing and medications," which might have caused or
contributed to many of his symptoms, and a "virtually
unprecedented number of epidural injections and powerful narcotic
and other strong medicines based on [their] diagnostic
conclusions." Inasmuch as Gross offered a rational fact-based
opinion premised upon physical examination of petitioner and a
comprehensive review of his pertinent medical records and history
provided by petitioner (see Matter of Calhoun v New York State &
Local Employees' Retirement Sys., 112 AD3d 1172, 1174 [2013]),
Gross' testimony, which respondent found credible, provided
substantial evidence to support respondent's finding that
petitioner was not permanently incapacitated from the performance
of his duties. Accordingly, despite the existence of other
evidence that might support a different conclusion, we discern no
basis upon which to disturb respondent's denial of petitioner's
application for accidental and performance of duty disability
retirement benefits (see Matter of Gonzalez v DiNapoli, 133 AD3d
1078, 1079 [2015]; Matter of Anderson v DiNapoli, 126 AD3d at
1279; Matter of Cepeda v New York State Comptroller, 115 AD3d at
1147; Matter of Arroyo v DiNapoli, 93 AD3d at 981; Matter of
Hulse v DiNapoli, 70 AD3d 1235, 1236-1237 [2010]).

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
                              -4-                  521665

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
