                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517797
________________________________

In the Matter of MAXINE G.
   JAMES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 2, 2014

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

                             __________


      Eliot Levine & Associates, Hauppauge (Eliot S. Levine of
counsel), for petitioner.

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

                             __________


Stein, J.P.

      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 which denied petitioner's
application for disability retirement benefits.

      Petitioner worked as a developmental aide at the Long
Island Developmental Disabilities Services Office for 18 years.
In 2007, she applied for disability retirement benefits under
Retirement and Social Security Law article 15, alleging that she
was permanently incapacitated from performing her job duties as
the result of an unspecified disability. Her application was
denied, and petitioner timely requested a hearing and
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redetermination. Following a hearing, the Hearing Officer found
that petitioner failed to establish that she was permanently
incapacitated from performing her job duties. Respondent adopted
the Hearing Officer's findings, with one additional conclusion of
law, and denied petitioner's application. Petitioner then
commenced this CPLR article 78 proceeding.

      We confirm. Petitioner bore the burden of establishing
that she was permanently incapacitated from the performance of
her job duties (see Matter of Weaver v DiNapoli, 108 AD3d 974,
975 [2013]; Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557
[2012]). Petitioner relies upon her medical records,
particularly 2007 and 2010 reports from her treating chiropractor
diagnosing her with cervical disc syndrome with paraspinal
myofascitis, cervical radicular neuralgia and lumbosacral
dysfunction. The reports also note the possible presence of
demyelinating disease, and conclude that she is totally and
permanently disabled. Petitioner further relies upon 2011
reports from a neurologist indicating that she "may be suffering
[from] demyelinating disease," albeit one following "a relatively
indolent benign course." In opposition, respondent notes that
the neurologist suggested multiple diagnoses but offered no
opinion on disability, and that another neurologist who examined
petitioner considered her MRI results to be "very non compelling"
and concluded that she had no "neurosurgical pathology." In
addition, Leon Sultan, an orthopedic surgeon who examined
petitioner on behalf of the New York State and Local Retirement
System, observed "symptom magnification . . . without any upper
extremity or lower extremity disuse atrophy, reflex impairment or
sensory deficit," and concluded that petitioner was not
permanently disabled or unable to perform her job duties.

      Respondent's determination to credit the opinion of one
expert over that of another "is dispositive where, as here, the
credited expert provides an articulated, rational and fact-based
opinion, founded upon a physical examination and review of
relevant medical reports and records" (Matter of Loysen v New
York State & Local Retirement Sys., 100 AD3d 1168, 1169 [2012]
[internal quotation marks and citations omitted]; see Matter of
Occhino v DiNapoli, 117 AD3d 1156, 1156 [2014]). Although
petitioner argues that Sultan's report cannot be considered
                              -3-                  517797

rational and fact-based because he did not consider test results
that postdated his opinion, the subsequent records did not
produce any new definitive diagnoses or new conclusions of
disability (cf. Matter of Baird v New York State & Local
Retirement Sys., 96 AD3d 1265, 1266 [2012]). Inasmuch as
Sultan's report and those of the examining neurologists – who
found no disability – constitute substantial evidence to support
respondent's determination, it will not be disturbed despite the
presence of evidence in the record that could support a contrary
conclusion (see Matter of Loysen v New York State & Local
Retirement Sys., 100 AD3d at 1169; Matter of Pennachio v
DiNapoli, 95 AD3d at 1558). Petitioner's remaining contentions
have been considered and found to be lacking in merit.

     McCarthy, Garry, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
