StateofNew YorkSupremeCourt, AppellateDivisionThird Judicial DepartmentDecided and Entered: July 19, 2018526151________________________________In the Matter of MICHAEL G.STUDDERT,Petitioner,v MEMORANDUM AND JUDGMENTNEW YORK STATE COMPTROLLERet al.,Respondents.________________________________Calendar Date: May 31, 2018Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.__________Fusco, Brandenstein & Rada, PC, Woodbury (John Hewson ofcounsel), for petitioner.Barbara D. Underwood, Attorney General, Albany (William E.Storrs of counsel), for respondents.__________Mulvey, J.Proceeding pursuant to CPLR article 78 (transferred tothis Court by order of the Supreme Court, entered in AlbanyCounty) to review a determination of respondent Comptrollerdenying petitioner’s application for accidental disabilityretirement benefits.Petitioner, a police inspector with the Nassau CountyPolice Department, sustained certain work-related injuries inFebruary 2011 when the unmarked police vehicle that he wasoperating was rear-ended by another motorist. Upon the advice ofthe police surgeon, petitioner sought medical treatment and wasevaluated by David Weissberg — an orthopedic surgeon –approximately one month later, at which time Weissberg diagnosedpetitioner as suffering from a cervical strain. Althoughpetitioner’s work activities were intermittently curtailed, hetestified that he remained on full-duty status for approximatelyfive or six months after the accident; following a worsening ofhis symptoms, petitioner was placed on restricted duty inFebruary 2012 — purportedly due to his inability to carry aweapon.In March 2013, petitioner’s employer filed an applicationfor accidental disability retirement benefits upon petitioner’sbehalf.1Respondent New York State and Local Police and FireRetirement System denied petitioner’s application upon the groundthat he was “not physically or mentally incapacitated from theperformance of duty as the natural and proximate result of anaccident sustained in . . . service.” Following a hearing andredetermination, the Hearing Officer upheld the denial, findingthat petitioner failed to establish that his disabling condition– while indeed permanent — was the result of an injury sustainedduring the February 2011 accident.2Respondent Comptrolleradopted the Hearing Officer’s findings and recommendations,prompting petitioner to commence this proceeding pursuant to CPLRarticle 78 to challenge the Comptroller’s determination.We confirm. Given the Retirement System’s concessions andthe Hearing Officer’s subsequent finding of permanency (lateradopted by the Comptroller), the sole issue remaining for our
