Rivera v. DiNapoli, 78 A.D.3d 1295 (N.Y. App. Div. 2010). · Go Syfert
Rivera v. DiNapoli, 78 A.D.3d 1295 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
12 citation events (12 in the last 25 years) across 1 distinct court.
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of O'Donoghue v. DiNapoli
N.Y. App. Div. · 2023 · confidence medium
Hence, the issue distills to whether the Retirement System successfully rebutted the heart presumption, which, in turn, required the Retirement System to demonstrate — through expert medical proof — that petitioner's cardiac condition was caused by risk factors other than his employment ( see Matter of Park v DiNapoli , 123 AD3d 1392, 1393 [3d Dept 2014]; Matter of Walters v DiNapoli , 82 AD3d 1487, 1487-1488 [3d Dept 2011]; Matter of Rivera v DiNapoli , 78 AD3d 1295, 1296 [3d Dept 2010]).
discussed Cited as authority (rule) Ferguson v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
The foregoing constituted competent evidence rebutting the statutory presumption and, inasmuch as resolution of conflicting medical evidence is left to the Comptroller, it also provides substantial evidence supporting the Comptroller’s determination that petitioner is not entitled to disability retirement benefits on this basis (see Matter of Baron v New York State Comptroller, 84 AD3d 1678, 1679 [2011]; Matter of Saddlemire v DiNapoli, 84 AD3d at 1693; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]).
discussed Cited as authority (rule) Ferguson v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
The foregoing constituted competent evidence rebutting the statutory presumption and, inasmuch as resolution of conflicting medical evidence is left to the Comptroller, it also provides substantial evidence supporting the Comptroller’s determination that petitioner is not entitled to disability retirement benefits on this basis (see Matter of Baron v New York State Comptroller, 84 AD3d 1678, 1679 [2011]; Matter of Saddlemire v DiNapoli, 84 AD3d at 1693; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]).
discussed Cited as authority (rule) Saddlemire v. DiNapoli
N.Y. App. Div. · 2011 · confidence medium
Accordingly, the only issue before us is whether the Retirement System rebutted the presumption of compensability contained in Retirement and Social Security Law § 507-b (c) by competent evidence (see Matter of Rivera v DiNapoli, 78 AD3d 1295, 1295-1296 [2010]).
discussed Cited as authority (rule) Harrison v. DiNapoli
N.Y. App. Div. · 2011 · confidence medium
Such testimony, coupled with petitioner’s medical records and the reports submitted by other physicians who either evaluated or treated petitioner, is sufficient to rebut the statutory presumption (see Matter of Walters v DiNapoli, 82 AD3d 1487, 1488 [2011]; Matter of Marinetti v DiNapoli, 82 AD3d 1347, 1348-1349 [2011]; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]; Matter of Feldon v New York State Comptroller, 69 AD3d 1092, 1093 [2010], lv denied 15 NY3d 702 [2010]; Matter of O’Sullivan v DiNapoli, 68 AD3d 1416, 1417-1418 [2009]; compare Matter of Parcell v Office of N.Y.
discussed Cited as authority (rule) McAuliffe v. DiNapoli
N.Y. App. Div. · 2011 · confidence medium
Accordingly, the sole issue before us is whether the Retirement System rebutted that presumption by competent medical evidence (see Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]; Matter of Feldon v New York State Comptroller, 69 AD3d 1092, 1092-1093 [2010], lv denied 15 NY3d 702 [2010]).
discussed Cited as authority (rule) Walsh v. DiNapoli
N.Y. App. Div. · 2011 · confidence medium
To successfully rebut the presumption, the Retirement System must present evidence of risk factors along with an expert opinion that “ ‘excludes an applicant’s employment as a causative factor’ ” (Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010], quoting Matter of Bryant v Hevesi, 41 AD3d 930, 932 [2007]).
discussed Cited as authority (rule) Walters v. DiNapoli
N.Y. App. Div. · 2011 · confidence medium
Inasmuch as the expert opined that petitioner’s heart disease was not caused by his occupation or related stress, but rather by the existence of numerous cardiac risk factors unrelated to his job, we conclude that the presumption was satisfactorily rebutted (see Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]; Matter of Lawless v DiNapoli, 56 AD3d 1114 , 1115-1116 [2008]; Matter of Bryant v Hevesi, 41 AD3d 930, 931-932 [2007]; Matter of Krupinski v McCall, 302 AD2d 676, 677 [2003]; cf. Matter of Parcell v Office of N.Y.
discussed Cited "see, e.g." Park v. DiNapoli
N.Y. App. Div. · 2014 · signal: compare · confidence medium
State Comptroller, 29 AD3d 1075, 1075-1076 [2006]; Matter of Skae v Regan, 208 AD2d 1028, 1029-1030 [1994]; Matter of Di Laura v Regan, 189 AD2d 994, 995-996 [1993]; compare Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]).
discussed Cited "see, e.g." Park v. DiNapoli
N.Y. App. Div. · 2014 · signal: compare · confidence medium
State Comptroller, 29 AD3d 1075, 1075-1076 [2006]; Matter of Skae v Regan, 208 AD2d 1028, 1029-1030 [1994]; Matter of Di Laura v Regan, 189 AD2d 994, 995-996 [1993]; compare Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]).
Retrieving the full opinion text from the archive…
In the Matter of Juan C. Rivera
v.
Thomas P. DiNapoli, as Comptroller of the State of New York
Appellate Division of the Supreme Court of the State of New York.
Nov 4, 2010.
78 A.D.3d 1295
Kavanagh.
Cited by 10 opinions  |  Published
Kavanagh, 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 Comptroller which denied petitioner’s application for performance of duty disability retirement benefits.

Petitioner was a correction officer who, in 2004, suffered a myocardial infarction after falling ill while at work. When it was determined that he could not return to work on account of his resulting medical condition, petitioner applied for performance of duty disability retirement benefits (see Retirement and Social Security Law § 507-b [c]). Respondent New York State and Local Retirement System denied his application, concluding that, although he was permanently incapacitated, his disability “was not sustained as a result of the performance or discharge of his . . . duties.” Following a hearing, a Hearing Officer agreed and concluded that petitioner was not entitled to performance of duty disability retirement benefits. After respondent Comptroller adopted the Hearing Officer’s finding and denied petitioner’s application for benefits, petitioner commenced this CPLR article 78 proceeding to annul that determination.

We confirm. Retirement and Social Security Law § 507-b (c)[*1296] provides that where an individual has “successfully passed a physical examination on entry into service as a correction officer” that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was “incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.” Here, it is not disputed that petitioner successfully passed his physical examination when he began his employment as a correction officer or that the myocardial infarction rendered him permanently incapacitated. Thus, it was the Retirement System’s obligation to rebut the presumption that petitioner’s disability occurred in the performance and discharge of his duties as a correction officer (see Matter of Bryant v Hevesi, 41 AD3d 930, 931 [2007]; Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d 1075, 1075 [2006]).

The Retirement System offered the opinion of a cardiologist who, after examining petitioner, concluded that while work-related stress “can aggravate the symptoms of coronary artery disease,” petitioner’s coronary artery disease “was not related to his employment as a correction officer.” In reaching this conclusion, the cardiologist made reference to the fact that petitioner suffered from a variety of risk factors commonly associated with coronary heart disease, including hyperlipidemia (excessive amounts of fat and fatty substances in the blood), diabetes mellitus,[1] obesity and hypertension.[2] Moreover, contrary to petitioner’s assertion, the cardiologist’s failure to identify the precise cause of his heart disease did not render his opinion inconclusive (compare Matter of Parcell v Office of N.Y. State Comptroller, 29 AD3d at 1075-1076). Rather, as this Court previously held, “the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant’s employment as a causative factor” (Matter of Bryant v Hevesi, 41 AD3d at 932). For these reasons, and based upon our review of the record as a whole, we find that the presumption was effectively rebutted and, accordingly, petitioner’s application for benefits was properly denied (see Matter of Lawless v DiNapoli, 56 AD3d 1114, 1115 [2008]).

Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Adjudged[*1297] that the determination is confirmed, without costs, and petition dismissed.

1

While the cardiologist accurately stated that petitioner had insulin-dependent diabetes, the record establishes that he was not insulin-dependent at the time of his heart attack.

2

While the cardiologist’s report contains inconsistent reference to hypertension, petitioner’s medical records confirm that he has a history of this condition. Moreover, despite what was noted in that report, petitioner’s medical records also reveal that he was a prior smoker.