Clark v. Levitt

50 A.D.2d 695, 375 N.Y.S.2d 461, 1975 N.Y. App. Div. LEXIS 12547

Opinion

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to annul a determination of the State Comptroller disapproving petitioner’s application for accidental disability retirement (Retirement and Social Security Law, § 363). The Comptroller’s determination disapproving petitioner’s application for accidental disability retirement is factual and thus, if supported by substantial evidence, must be affirmed since "exclusive authority” to render decisions on retirement applications is vested in the Comptroller (Retirement and Social Security Law, § 374, subd b; Matter of Demma v Levitt, 11 NY2d 735; Matter of Croshier v Levitt, 5 NY2d 259). The Comptroller’s denial of petitioner’s application is based on a finding that petitioner is not incapacitated for performance of his duties as a patrolman as the natural and proximate result of the accidents he sustained. This finding is supported by medical testimony in the record as a whole and, thus, the Comptroller’s determination should be affirmed (e.g. Matter of Cohen v Levitt, 36 AD2d 992, mot for lv to app den 29 NY2d 486; Matter of Retab v Levitt, 24 AD2d 912). At most the record contains conflicting medical testimony, and the evaluation of such testimony by the Comptroller must be accepted (e.g. Matter of Cunningham v Levitt, 40 AD2d 915; Matter of Raab v Levitt, supra). Determination confirmed, and petition dismissed, without costs. Herlihy, P. J., Greenblott, Koreman, Main and Reynolds, JJ., concur.