                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      521821
________________________________

In the Matter of MICHAEL
   DEL PESCHIO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Nicholas
Switach 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 respondent denying petitioner's
applications for accidental disability retirement benefits, World
Trade Center accidental disability retirement benefits and
performance of duty disability retirement benefits.

      Petitioner was a police officer for the City of Yonkers
Police Department. He was a member of the emergency services
unit and responded to the site of the World Trade Center
following the events of September 11, 2001. Petitioner went
there on three different occasions in September 2001 and spent a
                              -2-                521821

total of 48 hours at the site. After working at the site,
petitioner began experiencing breathing problems and eventually
was diagnosed with a number of medical conditions, including
chronic rhinosinusitis, dyspnea on exertion, sleep apnea and a
deviated septum. He stopped working for the police department in
June 2011. Due to his respiratory and related problems,
petitioner applied for accidental disability retirement benefits,
World Trade Center accidental disability retirement benefits and
performance of duty disability retirement benefits. His
applications were denied upon the ground that he was not
permanently incapacitated from performing his duties as a police
officer. Petitioner requested a hearing and, at its conclusion,
a Hearing Officer upheld the denial of the applications.
Respondent adopted the Hearing Officer's decision, and this CPLR
article 78 proceeding ensued.

      We confirm. "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 Pellittiere v New York State & Local Police &
Fire Retirement Sys., 121 AD3d 1143, 1144 [2014] [internal
quotation marks and citation omitted]; see Matter of Anderson v
DiNapoli, 126 AD3d 1278, 1278 [2015]; Matter of Occhino v
DiNapoli, 117 AD3d 1156, 1156 [2014]).1 Notably, where
conflicting medical evidence is presented, respondent is vested
with the authority to weigh such evidence and credit one medical
expert's opinion over that of another (see Matter of Bates v New
York State & Local Police & Fire Retirement Sys., 120 AD3d 872,
873 [2014]; Matter of Pannachio v DiNapoli, 95 AD3d 1557, 1557
[2012]).



    1
        Although an applicant seeking World Trade Center
accidental disability retirement benefits enjoys a statutory
presumption with respect to the issue of causation (see Matter of
Kennedy v DiNapoli, 106 AD3d 1429, 1429-1430 [2013], lv denied 22
NY3d 851 [2013]), the applicant must be permanently disabled in
order to receive such benefits (see Matter of Cantelmo v New York
State Comptroller, 105 AD3d 1306, 1307-1308 [2013]).
                              -3-                521821

      Here, petitioner was treated by a number of doctors
following his exposure to the World Trade Center site, which
treatment continued through the date of his retirement and
thereafter. Mitchell Horowitz, a pulmonologist who conducted an
independent medical evaluation of petitioner at the request of
the New York State and Local Retirement System, observed that
petitioner's primary problem was chronic rhinosinusitis, but
noted that he also suffered from dyspnea on exertion, which
Horowitz largely attributed to petitioner's weight, smoking
history and obstructive sleep apnea. Horowitz further indicated
that there was no evidence that petitioner had asthma or reactive
airway disease and opined that petitioner did not suffer from a
disability related to these conditions.

      Alan Berkower, an otolaryngologist who also examined
petitioner at the request of the Retirement System, indicated
that petitioner suffered from chronic allergic rhinitis and
pansinusitis that was exacerbated by his exposure to the World
Trade Center site, but noted that petitioner's heavy smoking and
obesity also contributed to the compromise of his airway.
According to Berkower, although sinus surgery might alleviate
some of his symptoms, petitioner was not permanently
incapacitated from performing his duties as a police officer.

      Only one of the many other physicians who treated
petitioner, Phillip Massengill, concluded that petitioner was
permanently disabled from performing his duties. Respondent was
entitled to credit the rational and fact-based opinions of
Horowitz and Berkower over the contrary opinion of Massengill.
Therefore, we find that substantial evidence supports
respondent's determination denying petitioner benefits upon the
ground that he was not permanently incapacitated from performing
his duties as a police officer (see Matter of Guadagnolo v
DiNapoli, 128 AD3d 1246, 1248-1249 [2015]; Matter of Pennachio v
DiNapoli, 95 AD3d at 1558). In view of our disposition, we need
not address petitioner's remaining claim.

     McCarthy, J.P., Garry, Devine and Aarons, JJ., concur.
                              -4-                  521821

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
