                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    518144
________________________________

In the Matter of SARAH R.
   BATES,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE AND LOCAL
   POLICE AND FIRE RETIREMENT
   SYSTEM,
                    Respondent.
________________________________


Calendar Date:   June 4, 2014

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

                             __________


      Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Glenn
E. Pezzulo of counsel), for petitioner.

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

                             __________


Egan Jr., 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.

      In January 2009, petitioner, a firefighter, applied for
performance of duty and accidental disability retirement
benefits, claiming that she was permanently disabled due to
injuries to her back sustained in incidents that occurred in 2000
and 2007. After the applications initially were denied,
                              -2-                518144

petitioner requested a hearing and redetermination. Following a
hearing, the Hearing Officer upheld the denials, finding that
petitioner had not established that she was permanently
incapacitated from performing her job duties and that neither
incident constituted an accident within the meaning of Retirement
and Social Security Law § 363. The Comptroller thereafter upheld
the Hearing Officer's decision, prompting petitioner to commence
this CPLR article 78 proceeding.1

      We confirm. As the applicant, petitioner bore the burden
of establishing that she was permanently incapacitated from
performing her duties as a firefighter (see Matter of Pavone v
DiNapoli, 114 AD3d 1012, 1013 [2014]). "Where, as here, there is
conflicting medical evidence, [the Comptroller] is vested with
the exclusive authority to weigh such evidence and credit the
opinion of one medical expert over another" (Matter of Gatewood v
DiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]; accord
Matter of Arroyo v DiNapoli, 93 AD3d 980, 981 [2012]).

      The Comptroller credited the medical opinion of Austin
Leve, the board-certified orthopedic surgeon who testified for
respondent, over the opinions of petitioner's treating orthopedic
surgeon and her rheumatologist, and we disagree with petitioner's
contention that Leve's opinion lacked a proper foundation. The
record establishes that Leve's opinion was based upon a physical
examination of petitioner in August 2009 and a review of the
pertinent medical records. Based upon such examination and
review, Leve opined that, although petitioner had subjective
complaints, there were no objective findings indicating that she
was permanently incapacitated from performing her job duties.
Although petitioner is correct that Leve did not review an MRI
performed on her subsequent to his examination, Leve testified
that he was aware of the MRI results and that such results did


    1
        As petitioner did not address the Comptroller's findings
that the 2000 and 2007 incidents were not accidents within the
meaning of Retirement and Social Security Law § 363 in her brief,
any arguments concerning the denial of her application for
accidental disability retirement benefits are deemed abandoned
(see Matter of Dymond v Hevesi, 24 AD3d 938, 938 n [2005]).
                              -3-                  518144

not change his opinion. Inasmuch as Leve's opinion was rational,
fact-based and founded upon a physical examination of petitioner
and a review of relevant medical records, we decline to disturb
the Comptroller's determination, notwithstanding other evidence
in the record that could support a contrary result (see Matter of
Marello v DiNapoli, 111 AD3d 1052, 1053 [2013]; Matter of
Cantelmo v New York State Comptroller, 105 AD3d 1306, 1307-1308
[2013]).

     Peters, P.J., Stein, Rose and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
