Foster v. McCall

Appellate Division of the Supreme Court of New York

Foster v. McCall

238 A.D.2d 642, 656 N.Y.S.2d 955, 1997 N.Y. App. Div. LEXIS 3139

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 1997

StatusPublished

Cited by1 cases

This text of 238 A.D.2d 642 (Foster v. McCall) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. McCall, 238 A.D.2d 642, 656 N.Y.S.2d 955, 1997 N.Y. App. Div. LEXIS 3139 (N.Y. Ct. App. 1997).

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Opinion

—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 request for performance of duty disability retirement benefits.

Petitioner, a police officer, was injured when he moved a case of flares and, thereafter, applied for performance of duty disability retirement benefits. Respondent denied petitioner’s application upon a finding that petitioner was not permanently incapacitated from performing his duties as a police officer. It was for respondent to evaluate the conflicting medical testimony presented by the medical experts and accept the opinion of one medical expert over the other (see, Matter of McGarry v McCall, 234 AD2d 886, 887). Inasmuch as the medical expert called on behalf of the New York State and Local Police and Fire Retirement System testified that, based on his examination of petitioner, petitioner was not permanently incapacitated from performing his duties as a police officer, we find that substantial evidence supports respondent’s determination (see, Matter of Hassett v Regan, 119 AD2d 954) and it must, accordingly, be confirmed.

Cardona, P. J., Mikoll, Crew III, White and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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—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 request for performance of duty disability retirement benefits.

Petitioner, a police officer, was injured when he moved a case of flares and, thereafter, applied for performance of duty disability retirement benefits. Respondent denied petitioner’s application upon a finding that petitioner was not permanently incapacitated from performing his duties as a police officer. It was for respondent to evaluate the conflicting medical testimony presented by the medical experts and accept the opinion of one medical expert over the other (see, Matter of McGarry v McCall, 234 AD2d 886, 887). Inasmuch as the medical expert called on behalf of the New York State and Local Police and Fire Retirement System testified that, based on his examination of petitioner, petitioner was not permanently incapacitated from performing his duties as a police officer, we find that substantial evidence supports respondent’s determination (see, Matter of Hassett v Regan, 119 AD2d 954) and it must, accordingly, be confirmed.

Cardona, P. J., Mikoll, Crew III, White and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

238 A.D.2d 642, 656 N.Y.S.2d 955, 1997 N.Y. App. Div. LEXIS 3139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-mccall-nyappdiv-1997.

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