October 07, 2019

Relying on hearsay evidence in an administrative proceeding


Although the New York State and Local Police and Fire Retirement System [System] conceded that the injury suffered by an applicant for accidental disability retirement benefits was an accident within the meaning of the Retirement and Social Security Law, the System rejected a State Trooper's [Trooper] application for such benefits based on a finding that he is neither permanently disabled nor permanently incapacitated.

Following a hearing, a Hearing Officer upheld the System's the denial these  applications. The Comptroller adopted the Hearing Officer's findings and decision and Trooper filed a CPLR Article 78 petition filing the Comptroller determination.

The Appellate Division initially observed that an applicant for disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law [RSSL], and the Comptroller's determination in this regard will be upheld if supported by substantial evidence. However, this issue was moot as the System conceded Trooper had suffered his injury as the result of an accident within the meaning of the RSSL.

Trooper's board-certified, treating orthopedic surgeon testified that Trooper is permanently disabled and, in his opinion, Trooper "was unable to work as a state trooper."

In contrast the System's board-certified orthopedic surgeon conducted an independent medical examination of Trooper and after a physical examination of Trooper, a review of his medical records and consideration of Trooper's "subjective complaints" opined that Trooper is not permanently disabled or incapable of performing the duties of a state trooper.

In response to Trooper's contention that the hearsay evidence contained in the report of the Retirement System's surgeon "cannot prevail over the credible, sworn testimony of his witness," citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "hearsay is admissible as competent evidence in an administrative proceeding, and[,] if sufficiently relevant and probative[,] may constitute substantial evidence even if contradicted by live testimony"

Further, said the court, "it is not the role of this Court to weigh the evidence and substitute its judgment for that of the administrative factfinder," and as the record as a whole contains substantial evidence to support the denial of Trooper's application, the Comptroller's finding that petitioner is not permanently incapacitated will not be disturbed.

The decision is posted on the Internet at:


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