Bare v. McCall

249 A.D.2d 770, 671 N.Y.S.2d 797, 1998 N.Y. App. Div. LEXIS 4122

Opinion

—Mercure, J. P.

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 which denied petitioner’s application for disability retirement benefits.

Petitioner applied for disability retiremént benefits due to a shoulder injury he sustained during an automobile accident that occurred while he was performing his duties as a State Trooper. After petitioner’s application was initially disapproved, an administrative hearing was held. The Hearing Officer determined that petitioner was not permanently incapacitated from performing his duties. Respondent upheld that finding upon administrative review and this CPLR article 78 proceeding followed.

We confirm. In our view, “[t]here is substantial evidence in the record to support respondent’s determination that petitioner failed to sustain his burden of proving that he is permanently incapacitated from performing his duties as a [State Trooper]” (Matter of City of Schenectady [Coker] v McCall, 245 AD2d 708, 709).

Footnotes

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* At petitioner’s administrative hearing, orthopedic surgeon John Dolan testified, on behalf of the New York State and Local Police and Fire Retirement System. According to Dolan, petitioner’s MRI test was normal and petitioner’s other tests were within the normal range. Dolan found a complete resolution of previous problems with the shoulder, resolved tendinitis and a normal glenoid labrum. Dolan also failed to find evidence of atrophy or frozen shoulder and concluded that petitioner did not have a shoulder disability such that would prevent him from performing his duties as a Trooper. Although petitioner’s medical expert provided testimony to the contrary, it was within respondent’s authority to evaluate the conflicting evidence and find in favor of the Retirement System (see, Matter of Dubois v McCall, 239 AD2d 774, 775). Accordingly, we find no reason to disturb respondent’s determination.

The remaining arguments advanced by petitioner have been examined and found to be unpersuasive.

White, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

While petitioner correctly points out that the Hearing Officer mistakenly mentioned the preponderance of the evidence standard in his decision, we note that respondent, whose determination is under review in this proceeding, cited the correct standard of proof in his decision.