        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1402
TP 13-00689
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF ROBERT QUINTANA, PETITIONER,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR PETITIONER.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (MARY B. SCARPINE OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Patrick H.
NeMoyer, J.], entered April 15, 2013) to annul a determination finding
that petitioner was capable of returning to his employment as a police
officer in a light-duty capacity.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the amended petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a hearing, that he is
capable of returning to work in a light-duty capacity. Petitioner had
been receiving benefits pursuant to General Municipal Law § 207-c as a
result of injuries that he received in the course of his work as a
police officer. After receipt of an independent medical examination
(IME) report indicating that petitioner was able to return to work in
a light-duty capacity, respondent assigned petitioner to work as a
camera monitor in the police video surveillance room.

     We note at the outset Supreme Court should have transferred the
entire proceeding to this Court, rather than first disposing of
certain contentions of petitioner. The amended petition raises a
substantial evidence question, and the remaining points made by
petitioner are not objections that could have terminated the
proceeding within the meaning of CPLR 7804 (g) (see Matter of Putnam
Cos. v Shah, 93 AD3d 1315, 1316, lv denied 19 NY3d 811; Matter of
Wynne v Town of Ramapo, 286 AD2d 338, 339). Nonetheless, because the
record is now before us, we will “treat the proceeding as if it had
been properly transferred here in its entirety” (Wynne, 286 AD2d at
339), and review petitioner’s contentions de novo (see Putnam Cos., 93
AD3d at 1316; Matter of Brunner v Bertoni, 91 AD3d 1100, 1102 n).
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                                                         TP 13-00689

     It is well established that “the scope of [a] CPLR article 78
proceeding, following an administrative hearing, is limited to review
of the issues raised and addressed in that hearing” (Matter of
Cummings v New York State Dept. of Motor Vehs., 87 AD3d 1347, 1348
[internal quotation marks omitted]; see Matter of Vicari v Wing, 244
AD2d 974, 976). Thus, “ ‘[a] petitioner may not raise a new claim in
a proceeding pursuant to CPLR article 78 that was not raised in the
administrative hearing under review’ ” (Matter of Stoughtenger v
Carrion, 72 AD3d 1484, 1486). Here, petitioner raises several
contentions for the first time in his amended petition, including that
the hearing violated his due process rights, and, therefore, those
contentions are not properly before us (see Matter of Molinsky v New
York State Dept. of Motor Vehs., 105 AD3d 960, 960-961; Stoughtenger,
72 AD3d at 1486; Matter of Mugalli v New York State Liq. Auth., 256
AD2d 1116, 1116).

     With respect to petitioner’s remaining contentions, we conclude
that the Hearing Officer’s determination that petitioner was able to
return to work in a light-duty capacity is supported by substantial
evidence (see Matter of Clouse v Allegany County, 46 AD3d 1381, 1381-
1382; Matter of Chadha v County of Nassau, 248 AD2d 465, 466; Matter
of Flynn v Pease, 242 AD2d 331, 331-332). “Substantial evidence
‘means such relevant proof as a reasonable mind may accept as adequate
to support a conclusion or ultimate fact’ ” (Rainer N. Mittl,
Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d
326, 331, quoting 300 Gramatan Ave. Assoc. v State Div. of Human
Rights, 45 NY2d 176, 180; see Matter of Lundy v City of Oswego, 59
AD3d 954, 955). “A reviewing court in passing upon this question of
law may not substitute its own judgment of the evidence for that of
the administrative agency, but should review the whole record to
determine whether there exists a rational basis to support the
findings upon which the agency’s determination is predicated” (Matter
of Purdy v Kreisberg, 47 NY2d 354, 358; see Chadha, 248 AD2d at
466-467).

     Here, there is ample evidence in the record, including expert
medical testimony, petitioner’s medical records, and several IME
reports, to support the Hearing Officer’s determination that
petitioner was fit to return to work on a light-duty basis (see
Chadha, 248 AD2d at 466; Flynn, 242 AD2d at 332). Although
petitioner’s primary care physician stated that petitioner was totally
disabled and unable to return to work in any capacity, his progress
notes contain no basis for that opinion aside from petitioner’s
subjective complaints of pain, and he acknowledged that petitioner had
no trouble with activities of daily living, including bathing,
communicating, dressing, eating, grooming, or driving. In any event,
“[t]he Hearing Officer was entitled to weigh the parties’ conflicting
medical evidence and to assess the credibility of the witnesses, and
‘[w]e may not weigh the evidence or reject [the Hearing Officer’s]
choice where the evidence is conflicting and room for a choice
exists’ ” (Clouse, 46 AD3d at 1382, quoting Matter of CUNY-Hostos
Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75; see
Matter of Hill v New York State & Local Retirement Sys., 295 AD2d 802,
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                                                         TP 13-00689

802-803).

     Contrary to the contention of petitioner, the record reflects
that both respondent’s expert and the Hearing Officer considered the
specific duties of a camera monitor and petitioner’s ability to
perform those duties. The police captain who oversees the
surveillance room testified in detail about the duties of a camera
monitor, the camera monitor job description was received in evidence
at the hearing, and the Hearing Officer conducted a site visit to the
surveillance room. With respect to petitioner’s contention that the
Hearing Officer failed to consider the impact of petitioner’s
medications on his ability to perform the duties of a camera monitor,
we note that petitioner submitted no evidence at the hearing that his
medications rendered him unable to perform the position at issue (see
Flynn, 242 AD2d at 332). Although respondent’s expert testified that
two of petitioner’s medications could potentially affect alertness, he
further testified that petitioner had been taking those medications
for so long that he did not expect any problems with petitioner’s
ability to perform the duties of a camera monitor (see generally id.
at 331-332).




Entered:    February 7, 2014                   Frances E. Cafarell
                                               Clerk of the Court
