                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   522907
________________________________

In the Matter of ROBERT
   CHOMICKI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS NITIDO, as Deputy State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


      Baker, Leshko, Saline & Blosser, LLP, White Plains (Anthony
C. Saline of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                             __________


Lynch, 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 denying petitioner's
application for accidental disability retirement benefits.

      Petitioner retired from his employment as a police officer
for the City of Yonkers in January 2010 based upon his years of
service. In September 2010, petitioner applied for accidental
disability retirement benefits and performance of duty
disability retirement benefits, alleging that he was permanently
incapacitated from the performance of his duties as a result of
injuries to his neck and shoulder sustained in three accidents
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that occurred in June 1988, April 1996 and June 1996. Although
petitioner's application for performance of duty disability
benefits was granted, his application for accidental disability
retirement benefits was denied. Following a hearing, at which it
was conceded that the three incidents were accidents and that
petitioner was incapacitated from the performance of his duties,
the Hearing Officer denied the accidental disability retirement
application on the basis that the accidents were not the
proximate cause of his disability. The Comptroller affirmed that
determination and this CPLR article 78 proceeding ensued.

      We confirm. "[T]o be eligible for accidental disability
retirement benefits, petitioner's incapacitation must be the
natural and proximate result of an accident sustained while in
service" (Matter of Whipple v New York State and Local Retirement
Sys., 126 AD3d 1282, 1283 [2015] [internal quotation marks and
citations omitted], lv denied 26 NY3d 912 [2015]). "Where, as
here, there is conflicting medical evidence, the Comptroller is
authorized to resolve the conflicts and to credit one expert's
opinion over that of another so long as the credited expert
articulates a rational and fact-based opinion founded upon a
physical examination and review of the pertinent medical records"
(Matter of Pufahl v Murray, 111 AD3d 1050, 1051 [2013] [internal
quotation marks and citation omitted]; see Matter of Ortiz v
DiNapoli, 98 AD3d 1224, 1225 [2012]).

      Here, the Comptroller credited the medical report and
testimony of John Mazella, an orthopedic surgeon who examined
petitioner and reviewed his medical records and work history.
Mazella opined that petitioner's disability was not the proximate
result of one incident but was a combination of degenerative
changes due to daily living and work-related activities. With
regard to the three specific accidents, Mazella concluded that
petitioner suffered no significant trauma from the accidents
given that none of the accidents resulted in petitioner being
hospitalized nor did they result in petitioner losing any
significant time from work. Furthermore, petitioner continued on
full-duty assignment for over 13 years following the last
accident and did not seek any orthopedic treatment until after he
retired. Although there was medical testimony that could support
a contrary conclusion, Mazella's rational and fact-based medical
                              -3-                  522907

opinion based upon his examination of petitioner and review of
petitioner's medical records and work history provide substantial
evidence to support the Comptroller's determination and,
therefore, it will not be disturbed (see Matter of Whipple v New
York State and Local Retirement Sys., 126 AD3d at 1283; Matter of
Pufahl v Murray, 111 AD3d at 1051-1052; Matter of Ashley v
DiNapoli, 97 AD3d 1057, 1059 [2012]). We have reviewed
petitioner's remaining contentions, including that the denial of
accidental disability retirement benefits is inconsistent with
the fact that he was granted performance of duty disability
retirement benefits, and find them to be without merit.

     Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
