Matter of Rocco Merante v Thomas P. DiNapoli, as State Comptroller
Attorneys and Parties
Brief Summary
Public employee disability retirement for police officers—burden to prove permanent incapacity and whether an administrative determination may rest on a record lacking post-application medical/surgical records.
The Hearing Officer upheld the New York State and Local Retirement System’s denials of accidental and performance of duty disability retirement; the State Comptroller affirmed on administrative review.
Nothing; the Comptroller’s determination was confirmed.
Substantial evidence supported the finding that petitioner was not permanently incapacitated, based on the Retirement System’s orthopedic examiner’s objective testing and review of imaging; deciding the case on the admitted record was permissible where petitioner failed to move additional medical records into evidence (see CPLR article 78 [special proceeding to challenge administrative action]; CPLR 7803 [3], [4] [scope of review in Article 78; (3) arbitrary and capricious/abuse of discretion; (4) substantial evidence]).
Background
Petitioner, a police officer, claimed permanent incapacity from a September 2016 on-duty incident as an unrestrained passenger in a police vehicle that struck a deer. Treating orthopedic surgeon Cristian Brotea cited 2017 MRIs showing cervical, thoracic, and lumbar disc herniations with nerve root impingement and opined petitioner could not perform full police duties and that his condition was permanent. The Retirement System’s orthopedic examiner, Gregory Galano, performed objective tests (including Spurling and straight leg raise) in 2018, noted symptom magnification and absence of objective findings consistent with the complaints, reviewed the same MRIs, diagnosed strains, and opined petitioner could return to full duty. During the administrative proceedings, petitioner’s counsel referenced extensive post-application surgical records (left knee surgeries in 2016 and 2018, bilateral wrist surgeries in 2018, right thumb surgery in 2019) but repeatedly failed to submit or move them into evidence despite multiple adjournments. The Hearing Officer decided the case on the record as admitted.
Lower Court Decision
After hearing, the Hearing Officer credited the Retirement System’s IME over the treating physician, found no permanent incapacity, and upheld the denials. The State Comptroller adopted those findings and denied accidental and performance of duty disability retirement. Supreme Court transferred the CPLR article 78 proceeding to the Appellate Division without a merits ruling.
Appellate Division Reversal
No reversal; the Appellate Division confirmed the Comptroller’s determination and dismissed the petition. Dissent (Garry, P.J., joined by Mackey, J.) would remit, deeming it arbitrary to render a final merits decision while aware that extensive post-application surgical records existed, were referenced, and were in the agency’s possession but were never evaluated.
Legal Significance
Reaffirms that in disability retirement cases the applicant bears the burden to prove permanent incapacity and that, where medical opinions conflict, the Comptroller may credit one expert over another; judicial review asks only whether substantial evidence supports the determination. Also confirms that, under CPLR 7803 [3], [4] [scope of review in Article 78; (3) arbitrary and capricious/abuse of discretion; (4) substantial evidence], an agency may decide on the record actually admitted when a party fails to introduce available medical evidence, even if it was referenced and in the agency’s possession. The dissent highlights due process and record-completeness concerns in unusual circumstances involving missing foundational surgical records.
In Article 78 challenges to disability denials, the applicant must build the administrative record; failure to admit key medical and surgical records can be fatal, as courts will affirm if substantial evidence supports the agency’s decision based on the record actually before it.