                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 19, 2015                    520903
________________________________

In the Matter of MICHAEL
   GONZALEZ,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

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


Calendar Date:    October 16, 2015

Before:    McCarthy, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Bartlett, McDonough & Monaghan, White Plains (Michael
Catallo of counsel), for petitioner.

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

                              __________


Rose, 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, among other things, denying
petitioner's application for performance of duty disability
retirement benefits.

      Petitioner, a police officer, was diagnosed with coronary
artery disease and underwent triple bypass surgery in 2010. He
thereafter applied for performance of duty disability retirement
benefits, citing his heart condition. The application was
initially denied and petitioner requested a hearing and
redetermination. At the subsequent hearing, the New York State
                              -2-                520903

and Local Police and Fire Retirement System conceded that
petitioner's heart disease was causally related to his employment
pursuant to the statutory presumption (see Retirement and Social
Security Law § 363-a), but challenged petitioner's claim that he
was permanently disabled from performing his job duties. The
Hearing Officer thereafter found, among other things, that
petitioner had failed to demonstrate that he was permanently
disabled. Respondent adopted the findings and conclusions of the
Hearing Officer and denied the application, prompting this CPLR
article 78 proceeding.1

      We confirm. "In connection with any application for . . .
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 Byrne v DiNapoli, 85 AD3d 1530, 1531 [2011] [citations
omitted]; accord Matter of Pellittiere v New York State & Local
Police & Fire Retirement Sys., 121 AD3d 1143, 1144 [2014]).
Moreover, respondent "is vested with the authority to resolve
conflicts in the medical evidence and to credit the opinion of
one expert over another, and its determination will not be
disturbed when supported by substantial evidence" (Matter of
Occhino v DiNapoli, 117 AD3d 1156, 1156 [2014]; see Matter of
Pavone v DiNapoli, 114 AD3d 1012, 1013 [2014]). Here, petitioner
presented the report of his treating cardiologist, Kenneth
Kaplan, who opined that petitioner should not return to his usual
police duties due to the stress involved in the job and that
petitioner was permanently disabled. In contrast, the Retirement
System presented the report and testimony of cardiologist Sydney
Mehl, who examined petitioner and reviewed his medical records at
its request. Mehl opined that petitioner was not permanently


    1
        Petitioner had also filed an application for accidental
disability retirement benefits contending that he was permanently
disabled from performing his job duties due an accident that
occurred on August 12, 2010. That application was heard with
petitioner's performance of duty application. Respondent denied
the accidental disability application and, insofar as petitioner
does not address this issue in his brief, it is deemed abandoned
(see Matter of Dymond v Hevesi, 24 AD3d 938, 938 n [2005]).
                              -3-                  520903

incapacitated from performing his job duties, including running
and physical altercations. He based his opinion on the
successful outcome of the surgery, normal results from his
cardiac examination and an electrocardiogram and petitioner's
report of having a "good" cardiac stress test. Although
petitioner challenges Mehl's opinion on the ground that Mehl did
not include a list of the records he had reviewed in forming the
opinion, Mehl testified that he reviewed all the records sent to
him, including petitioner's job duties. Insofar as Mehl's
opinion was rational, fact-based and founded upon a physical
examination and a review of the relevant medical records,
respondent's determination is supported by substantial evidence
and it will not be disturbed, notwithstanding the evidence in the
record that would support a contrary result (see Matter of Bates
v New York State & Local Police & Fire Retirement Sys., 120 AD3d
872, 873 [2014]; Matter of Marello v DiNapoli, 111 AD3d 1052,
1053 [2013]).

     McCarthy, J.P., Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
