| Matter of Mazzei v DiNapoli |
| 2011 NY Slip Op 09570 [90 AD3d 1458] |
| December 29, 2011 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Robert V. Mazzei, Petitioner, v Thomas P. DiNapoli, as State Comptroller, Respondent. |
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Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for
respondent.
Spain, 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 which denied petitioner's applications for accidental and performance of duty disability retirement benefits.
Petitioner, a former police detective, was injured in December 1999 when he was pinned against a utility pole after his parked patrol car, which he had exited, was struck by another vehicle. He filed applications for accidental and performance of duty disability retirement benefits, which were denied.[FN*] Thereafter, as petitioner's condition worsened, he filed two additional applications, one for accidental disability retirement benefits and the second for performance of duty disability retirement benefits. Following the initial denial of these applications, a de novo hearing was conducted before a Hearing Officer at which additional [*2]medical evidence regarding petitioner's condition was presented. At the end of the hearing, the Hearing Officer concluded that the applications were properly denied. On appeal, respondent also found that the applications were properly denied, albeit—in part—for a different reason. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. Even with the additional medical proof adduced at the hearing, the record discloses that there was conflicting medical evidence concerning whether petitioner's injuries were causally related to his employment and rendered him permanently incapacitated from performing his duties. Since the resolution of conflicting medical opinions and the assessment of credibility are matters within the province of respondent (see Matter of Kaufman v Murray, 85 AD3d 1534, 1535 [2011]; Matter of Velazquez v New York State & Local Retirement Sys., 17 AD3d 833, 835 [2005]), we conclude that substantial evidence supports respondent's determination. Therefore, we will not disturb it despite the existence of proof that might support a different conclusion.
Mercure, A.P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.