Administrative Disability Determinations May Stand on the Hearing Record Despite Known Unsubmitted Medical Records When the Applicant Had Full Opportunity to Offer Them

1. Introduction

Matter of Merante v DiNapoli (Appellate Division, Third Department, Feb. 11, 2026) addresses a recurring tension in New York public-employee disability retirement litigation: how far an administrative decision-maker must go to ensure the evidentiary record is “complete,” particularly when the applicant (through counsel) fails to place referenced medical records into evidence.

The petitioner, Rocco Merante, a police officer, sought accidental disability and performance of duty disability retirement benefits, alleging permanent incapacity from a September 2016 incident in which he was an unrestrained passenger in a police vehicle that struck a deer. The respondent, Thomas P. DiNapoli (State Comptroller), acting through the New York State and Local Retirement System (Retirement System), denied both applications after concluding Merante was not permanently incapacitated from performing his job duties.

The case presented two principal issues: (1) whether the denial was procedurally defective or irrational because it was made on an allegedly incomplete record (with “outstanding” medical records not admitted at hearing); and (2) whether substantial evidence supported the merits finding that petitioner failed to prove permanent incapacity in the face of conflicting medical opinions.

2. Summary of the Opinion

The Third Department confirmed the Comptroller’s determination and dismissed the petition. The majority held that:

  • The Hearing Officer and Comptroller were entitled to decide the case on the evidentiary record created at the administrative hearing, where petitioner’s counsel had multiple opportunities to admit additional medical records but failed to do so.
  • On the merits, petitioner bore the burden to prove permanent incapacity, and where medical evidence conflicts, the Comptroller has exclusive authority to weigh credibility and choose between experts; the Retirement System’s orthopedic expert provided substantial evidence supporting “no permanent disability.”

A two-judge dissent would have found the final determination arbitrary and capricious because the Retirement System and Hearing Officer were aware that extensive post-application surgical records existed, were in the Retirement System’s possession, and were repeatedly referenced, yet the ultimate incapacity finding was made without evaluation of those materials. The dissent advocated remittal for further proceedings given the unusually “foundational” nature of the missing records.

3. Analysis

A. Precedents Cited

The opinion is built on two lines of authority: (i) Article 78 record-review principles (arbitrary/capricious and substantial evidence), and (ii) retirement-disability cases allocating the burden of proof and confirming the Comptroller’s discretion in weighing conflicting medical evidence.

1) Record-based review and the consequences of failing to introduce evidence

  • Matter of Levine v New York State Liq. Auth., 23 NY2d 863, 864 [1969]
    Role in Merante: Cited to support the proposition that an agency determination is properly made on the record before it. The majority uses Levine to justify the Hearing Officer’s choice to decide the applications based on admitted evidence, not on materials merely referenced or assumed to exist.
  • Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334, 1334 [3d Dept 2022]
    Role in Merante: Reinforces the same procedural principle in a modern Third Department setting: administrative adjudication proceeds on the record as made, and litigants must timely put supporting evidence into the hearing record.
  • Matter of Angelino v New York State Comptroller, 176 AD3d 1376, 1381 [3d Dept 2019] (compare)
    Role in Merante: Used as a comparator—suggesting that in some circumstances deficiencies in the record may warrant a different approach. The majority distinguishes Merante by emphasizing petitioner’s repeated opportunities to admit the missing records and counsel’s choice not to.
  • Matter of Cook v New York State Comptroller, 135 AD3d 1117, 1118-1119 [3d Dept 2016] (compare)
    Role in Merante: Another comparator case indicating that the Third Department has, in appropriate circumstances, addressed fairness/record completeness concerns. The majority places Merante on the opposite side of that line because the alleged incompleteness was attributable to counsel’s failure to offer evidence when prompted.
  • Matter of Danieu v DiNapoli, 77 AD3d 1152, 1154-1155 [3d Dept 2010] (compare)
    Role in Merante: Similarly signals that record issues can sometimes matter, but the majority views Merante as governed by the core rule: the agency is not required to incorporate unoffered documents into evidence.
  • Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974] (dissent)
    Role in Merante: The dissent relies on Pell’s definition of “arbitrary and capricious” as a rationality inquiry—whether the decision has a “sound basis in reason” with “due regard to the relevant facts.” The dissent uses Pell to argue that fault (counsel’s failures) does not end the inquiry if the agency knowingly resolved the merits on a record that did not reflect medical reality.

2) Disability-retirement burden of proof and deference on conflicting medical evidence

  • Matter of Hannon v DiNapoli, 226 AD3d 1122, 1123 [3d Dept 2024]
    Role in Merante: Provides the governing burden rule: the applicant must prove permanent incapacity for both accidental and performance of duty disability benefits.
  • Matter of Byrne v DiNapoli, 85 AD3d 1530, 1531 [3d Dept 2011]
    Role in Merante: Quoted (via Hannon) for the same burden proposition; Byrne remains a foundational Third Department formulation in these cases.
  • Matter of Graham v Gardner, 239 AD3d 1175, 1175 [3d Dept 2025]
    Role in Merante: Cited both for the burden principle and later for substantial-evidence support where an expert IME opinion supports denial despite contrary proof.
  • Matter of Mozdziak v DiNapoli, 231 AD3d 1215, 1216 [3d Dept 2024]
    Role in Merante: States the critical deference rule: when medical evidence conflicts, the Comptroller has exclusive authority to weigh the evidence and credit one expert over another; judicial review is limited to whether substantial evidence supports the choice.
  • Matter of McGowan v DiNapoli, 178 AD3d 1243, 1243-1244 [3d Dept 2019], lv denied 35 NY3d 917 [2020]
    Role in Merante: Supports the same deference framework and is later used as an example where an IME-based opinion supplied substantial evidence to uphold denial.
  • Matter of Solarino v DiNapoli, 171 AD3d 1434, 1437 [3d Dept 2019]
    Role in Merante: Cited for the proposition that an examining expert’s report and testimony can constitute substantial evidence supporting denial even where other medical evidence points the other way.
  • Matter of Studdert v New York State Comptroller, 163 AD3d 1343, 1346 [3d Dept 2018]
    Role in Merante: Reinforces that an IME and record review may supply the needed evidentiary basis; the court signals consistency with prior retirement-disability outcomes.
  • Matter of Stancarone v DiNapoli, 219 AD3d 1649, 1651 [3d Dept 2023]
    Role in Merante: Confirms the Comptroller may credit the Retirement System’s expert over the treating physician—an especially important point where treating physicians opine disability and IMEs dispute it.

Taken together, these citations show the majority’s methodological commitments: (1) the hearing record is the universe of proof unless properly supplemented, and (2) on that record, the Comptroller’s expert-choice is virtually unassailable if supported by “substantial evidence.”

B. Legal Reasoning

1) Procedural holding: an “incomplete” record is not the agency’s problem when the applicant had the chance to complete it

The majority rejects petitioner’s procedural attack under CPLR 7803 (3) and (4) by focusing on litigation conduct: petitioner’s counsel had “several opportunities” to offer the outstanding records at hearing; counsel instead relied on an assumption that the Retirement System “had all of his records,” and did not move them into evidence even after being reminded they were not in evidence. From that premise, the court holds the Hearing Officer “appropriately decided the applications on the record before it,” and the Comptroller was “justified” in basing the final determination on that record.

Doctrinally, the majority’s approach treats “record completeness” as a function of procedural opportunity rather than substantive accuracy: if the party with the burden had notice and opportunity to admit documents, the agency’s reliance on the admitted record remains rational.

2) Merits holding: deference to the Comptroller on conflicting medical evidence

On the merits, the majority applies the established retirement-disability framework:

  • Burden: petitioner must prove permanent incapacity.
  • Conflict: treating surgeon (Brotea) described multi-level disc herniations and opined petitioner could not safely perform essential police functions; the Retirement System expert (Galano) found mild-to-moderate range-of-motion limitations, evidence of “suboptimal effort” and “symptom magnification,” negative objective radiculopathy findings, and concluded no permanent disability and ability to return to full duty.
  • Review standard: where evidence conflicts, the Comptroller chooses which expert to credit; the court only asks whether that choice has “substantial evidence.”

The majority’s key evidentiary move is to characterize Galano’s testimony as a “rational opinion” grounded in (i) an examination, (ii) objective testing (Spurling and straight leg raise), and (iii) review of the MRIs. Even if the MRIs could support disability, the majority treats the IME’s explanation (objective/subjective mismatch and magnification) as sufficient to meet substantial-evidence review.

3) The dissent’s competing rationality theory: “arbitrary and capricious” can be triggered by knowingly deciding a merits question on a record understood to be medically unreal

The dissent accepts that the Hearing Officer acted within authority and that counsel is primarily to blame, but reframes the legal question: under Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, rationality demands “due regard to the relevant facts.” The dissent emphasizes that extensive surgical records:

  • existed,
  • were repeatedly referenced,
  • were in the Retirement System’s possession, and
  • were never evaluated when permanent incapacity was decided.

For the dissent, that combination makes the determination “analytically incomplete” even if procedurally explainable. The dissent would remit for further proceedings—an “unusual step” justified by “highly unusual circumstances.”

The majority’s response is implicit: Article 78 review is record-bound, and it is not the court’s role to reorder agency process to compensate for a party’s failure to create the record—particularly where the agency repeatedly provided opportunities to do so.

C. Impact

1) Strong reinforcement of “you must make the record” in Retirement System disability hearings

The practical rule emerging from the majority opinion is clear: even if additional medical records exist and are discussed, the Comptroller may decide permanent incapacity based on the evidence actually admitted, and a petitioner may not later convert counsel’s failure to introduce documents into an “incomplete record” argument under CPLR 7803.

This has immediate consequences for claimants:

  • Treating-doctor testimony may be discounted or even stricken if it relies on documents not admitted into evidence (a risk underscored by the procedural history described in the dissent).
  • The applicant’s burden is not merely substantive (prove disability), but procedural (ensure supporting proof is properly admitted).

2) Continued deference to IME-based denials

The decision also continues the Third Department’s pattern of affirming denials where the Retirement System’s IME provides a coherent explanation grounded in objective testing and record review. Claimants should expect that an IME narrative of symptom magnification and lack of objective corroboration can supply substantial evidence even against MRI findings and treating-physician opinions.

3) The dissent signals a potential fairness-based limit—without changing the rule

While not controlling, the dissent is noteworthy because it articulates a fairness-oriented “rationality” limit: a decision may be arbitrary if the agency knowingly resolves a medical reality question without considering foundational medical records. Future litigants may cite the dissent to argue for remittal in extreme scenarios (e.g., missing operative reports central to the claimed disability), but Merante’s majority holding makes clear that courts will be reluctant to do so where the applicant had repeated opportunities to admit the proof.

4. Complex Concepts Simplified

  • CPLR article 78: A special court proceeding used to challenge actions of New York administrative agencies. The court generally reviews what the agency did, not what the court thinks should have been done from scratch.
  • Substantial evidence (CPLR 7803 [4]): A low-to-moderate evidentiary threshold. If there is relevant proof that a reasonable person could accept to support the agency’s conclusion, the court will uphold it—even if contrary proof exists.
  • Arbitrary and capricious (CPLR 7803 [3]): A rationality test. The question is whether the decision has a sound basis in reason and considers the relevant facts (as framed by Pell).
  • “The record”: The evidence formally admitted at the administrative hearing. Materials that exist or are referenced do not become part of the record unless properly offered and received into evidence.
  • Permanent incapacity: In disability retirement cases, the applicant must show they cannot perform their job duties on a permanent basis—not merely that they have injuries or pain.
  • Treating physician vs IME: A treating physician knows the patient over time; an independent medical examiner evaluates for the Retirement System. New York law allows the Comptroller to credit the IME over the treating doctor if the IME opinion is rational and supported.
  • Objective vs subjective findings: “Objective” findings are measurable signs (e.g., nerve test responses); “subjective” findings rely more on the patient’s effort and reporting (e.g., some range-of-motion measures). The Retirement System expert used this distinction to infer symptom magnification.

5. Conclusion

Matter of Merante v DiNapoli significantly reinforces two practical rules in New York disability-retirement litigation: (1) the applicant must not only prove permanent incapacity but must also properly build the administrative record; and (2) where medical evidence conflicts, courts will defer to the Comptroller’s choice of expert if supported by substantial evidence.

The dissent underscores a competing concern—that rational decision-making should not proceed on a record everyone understands to omit foundational medical realities—but the majority’s holding signals that, absent extraordinary procedural unfairness attributable to the agency (rather than counsel), the Third Department will confirm determinations grounded in the admitted record and supported by a rational IME opinion.