Greene v. McCall

Appellate Division of the Supreme Court of New York

Greene v. McCall

234 A.D.2d 885, 651 N.Y.S.2d 950

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

DecidedDecember 26, 1996

StatusPublished

This text of 234 A.D.2d 885 (Greene 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

Greene v. McCall, 234 A.D.2d 885, 651 N.Y.S.2d 950 (N.Y. Ct. App. 1996).

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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 ordinary and accidental disability retirement benefits.

There is substantial evidence in the record to support respondent’s finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from performing her duties as a correction officer. While the expert medical testimony given by petitioner’s chiropractor and examining physician conflicted with that given by the neurologist who examined petitioner on behalf of the New York State and Local Employees’ Retirement System regarding the existence and extent of petitioner’s neck and back injuries, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Longendyke v Regan, 195 AD2d 695, 696). Respondent’s determination is accordingly confirmed.

Cardona, P. J., Mercure, Crew III, Yesawich Jr., and Carpinello, 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 ordinary and accidental disability retirement benefits.

There is substantial evidence in the record to support respondent’s finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from performing her duties as a correction officer. While the expert medical testimony given by petitioner’s chiropractor and examining physician conflicted with that given by the neurologist who examined petitioner on behalf of the New York State and Local Employees’ Retirement System regarding the existence and extent of petitioner’s neck and back injuries, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Longendyke v Regan, 195 AD2d 695, 696). Respondent’s determination is accordingly confirmed.

Cardona, P. J., Mercure, Crew III, Yesawich Jr., and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

234 A.D.2d 885, 651 N.Y.S.2d 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-mccall-nyappdiv-1996.

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