Gorman v. Levitt

Appellate Division of the Supreme Court of New York

Gorman v. Levitt

49 A.D.2d 970, 374 N.Y.S.2d 62, 1975 N.Y. App. Div. LEXIS 11278

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

DecidedOctober 23, 1975

StatusPublished

This text of 49 A.D.2d 970 (Gorman v. Levitt) 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

Gorman v. Levitt, 49 A.D.2d 970, 374 N.Y.S.2d 62, 1975 N.Y. App. Div. LEXIS 11278 (N.Y. Ct. App. 1975).

Pincite

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 State Comptroller which denied petitioner’s application for accidental disability retirement. On December 5, 1963, while in the course of his duties as a member of the Nassau County Police Department, petitioner fell into an excavation and injured his back. On October 22,1971, he applied for accidental disability which was denied by respondent. Petitioner thereafter made a request for a redetermination. After a hearing, the application was again denied and this proceeding ensued. Petitioner contends that respondent’s determination that he is not incapacitated for performance of his duties as a patrolman is not supported by substantial evidence. We do not agree. It is well settled that the determination of the Comptroller if supported by substantial evidence deprives the court of power to disturb it. (Matter of Croshier v Levitt, 5 NY2d 259.) While petitioner offered medical proof that he was disabled and unable to perform his duties, Dr. Roth, an orthopedic surgeon, testified on behalf of the retirement system. He stated he had examined petitioner and given him certain tests; that he reviewed the several medical reports of other doctors who had examined or treated petitioner; and that he also studied and evaluated X rays of petitioner’s spine. Finally, he testified that he found no positive objective findings of low back derangement. It was his opinion that there was "no objective reason why [petitioner] cannot perform all of the duties of [971]*971his position without prejudice to his well being.” Considering the record in its entirety, we are of the opinion that there is substantial evidence to sustain respondent’s determination of this factual issue and it, therefore, must be upheld. (Matter of Cunningham v Levitt, 40 AD2d 915; Matter of Cohen v Levitt, 36 AD2d 992.) Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Koreman, Larkin and Reynolds, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

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 State Comptroller which denied petitioner’s application for accidental disability retirement. On December 5, 1963, while in the course of his duties as a member of the Nassau County Police Department, petitioner fell into an excavation and injured his back. On October 22,1971, he applied for accidental disability which was denied by respondent. Petitioner thereafter made a request for a redetermination. After a hearing, the application was again denied and this proceeding ensued. Petitioner contends that respondent’s determination that he is not incapacitated for performance of his duties as a patrolman is not supported by substantial evidence. We do not agree. It is well settled that the determination of the Comptroller if supported by substantial evidence deprives the court of power to disturb it. (Matter of Croshier v Levitt, 5 NY2d 259.) While petitioner offered medical proof that he was disabled and unable to perform his duties, Dr. Roth, an orthopedic surgeon, testified on behalf of the retirement system. He stated he had examined petitioner and given him certain tests; that he reviewed the several medical reports of other doctors who had examined or treated petitioner; and that he also studied and evaluated X rays of petitioner’s spine. Finally, he testified that he found no positive objective findings of low back derangement. It was his opinion that there was "no objective reason why [petitioner] cannot perform all of the duties of [971]*971his position without prejudice to his well being.” Considering the record in its entirety, we are of the opinion that there is substantial evidence to sustain respondent’s determination of this factual issue and it, therefore, must be upheld. (Matter of Cunningham v Levitt, 40 AD2d 915; Matter of Cohen v Levitt, 36 AD2d 992.) Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Koreman, Larkin and Reynolds, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

49 A.D.2d 970, 374 N.Y.S.2d 62, 1975 N.Y. App. Div. LEXIS 11278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorman-v-levitt-nyappdiv-1975.

Opinion

Related

Cite This Page — Counsel Stack