                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     522156
________________________________

In the Matter of PHILLIP K.
   BORSILLI,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Jason D.
Lewis of counsel), for petitioner.

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

                             __________


Devine, 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 disability retirement benefits.

      In March 2011, petitioner, a correction officer, filed an
application for disability retirement benefits, alleging that he
is permanently incapacitated from performing his job duties due
to collapsed veins in his legs, an enlarged heart, diabetes, high
blood pressure, high cholesterol and asthma. The application was
initially denied and petitioner requested a redetermination.
Following a hearing, the Hearing Officer upheld the denial,
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concluding that petitioner had not demonstrated that he is
permanently incapacitated from performing his job duties.
Respondent adopted the Hearing Officer's determination, and this
CPLR article 78 proceeding ensued.

      "Petitioner bore the burden of establishing that he is
permanently incapacitated from performing his job duties" (Matter
of Sugrue v New York State Comptroller, 134 AD3d 1382, 1382
[2015] [citation omitted]; see Matter of James v DiNapoli, 120
AD3d 859, 859 [2014]). To that end, petitioner's treating
physician opined that petitioner was permanently incapacitated
from performing his job duties due to his cardiac condition, leg
condition and hypertension, and that his other conditions were
disabling in combination. In contrast, petitioner's treating
cardiologist examined him and found no evidence of a cardiac
disability, as did a cardiologist who examined petitioner and
reviewed his medical records on behalf of the New York State and
Local Employees' Retirement System. A vascular surgeon who
examined petitioner and his medical records for the Retirement
System similarly found "no indication of permanent disability
from venous insufficiency for work as a correction officer."
Finally, an internist who also examined petitioner and his
medical records on behalf of the Retirement System diagnosed him
as suffering from obesity, diabetes, hypertension, chronic
obstructive pulmonary disease, asthma and venous insufficiency,
but opined that none of those conditions were permanently
incapacitating.

      Respondent is vested with the authority to resolve any
conflicts in the medical evidence and credit one medical opinion
over another (see Matter of Cantelmo v New York State
Comptroller, 105 AD3d 1306, 1307 [2013]; Matter of Loysen v New
York State & Local Retirement Sys., 100 AD3d 1168, 1169 [2012]).
Inasmuch as the medical opinions credited by respondent were
rational and based upon physical examinations of petitioner
and/or reviews of his medical records, the determination denying
disability retirement benefits is supported by substantial
evidence and will not be disturbed (see Matter of Sugrue v New
York State Comptroller, 134 AD3d at 1383; Matter of Cantelmo v
New York State Comptroller, 105 AD3d at 1307-1308).
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     Lahtinen, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
