Caci v. Levitt

62 A.D.2d 1101, 404 N.Y.S.2d 419, 1978 N.Y. App. Div. LEXIS 11194

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the respondent State Comptroller, which denied petitioner’s application for accidental disability. Petitioner, a Buffalo police officer, was injured in an automobile accident on February 8, 1971. Thereafter, on May 2, 1975 he filed an application for accidental disability retirement based on the 1971 accident. He described his condition as a "chronic anxiety reaction necessitating psychiatric treatment”. Respondent disapproved the application, finding petitioner’s disability not to be the natural and proximate result of the accident. After a requested hearing respondent adhered to its initial determination. The instant article 78 proceeding was commenced to review that determination. The sole issue presented on this appeal is whether there is substantial evidence in the record as a whole to support respondent’s determination. We believe there is. Both petitioner and the retirement system produced well-qualified psychiatrists and they agreed petitioner’s disability is psychiatric rather than physical. They disagreed, however, as to the cause of the disability. Dr. McGowan testified on behalf of the retirement system to the various tests administered to petitioner and he concluded petitioner’s condition was not a result of the automobile accident, but due to "inter-personal relationship difficulties, problems at home and so on”. Respondent accepted Dr. McGowan’s testimony. The conflict of medical testimony presented a factual issue and considering the record as a whole, we are of the view that there is substantial evidence to sustain respondent’s conclusion. Consequently, it should not be disturbed (Matter of Clark v Levitt, 50 AD2d 695; Matter of Cunningham v Levitt, 40 AD2d 915). Determination confirmed, and petition dismissed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Mikoll, JJ., concur.