Goffred v. Kelly

13 A.D.3d 72, 784 N.Y.S.2d 870, 2004 N.Y. App. Div. LEXIS 14727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered August 13, 2003, which denied the petition brought pursuant to CPLR article 78 seeking to annul respondents’ determination denying petitioner an accident disability retirement pension, unanimously affirmed, without costs.

The Medical Board’s finding that petitioner is not disabled from performing full police duty is supported by credible evidence, and thus, may not be disturbed (see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760-761 [1996]). Petitioner’s case was considered by the Medical Board on six separate occasions. On each occasion, the Medical Board reviewed all the medical evidence submitted by petitioner, including the results of MRIs and EMGs, and conducted its own complete orthopedic examinations of the petitioner. Despite petitioner’s continuing claims of debilitating pain in his neck, shoulders, arms and legs, the Medical Board found no evidence of a disabling disease of the cervical and lumbar spine. The Medical Board was entitled to rely upon its own physical examinations which provided credible evidence for its determination and, accordingly, was not bound by the contrary opinions of petitioner’s experts (see Matter of Mulheren v Board of Trustees of Police Pension Fund, Art. II, 307 AD2d 129, 131 [2003], lv denied 100 NY2d 515 [2003]). Concur—Tom, J.P., Andrias, Saxe, Williams, Sweeny, JJ.