Jones v. McCall

Appellate Division of the Supreme Court of New York

Jones v. McCall

301 A.D.2d 859, 753 N.Y.S.2d 397, 2003 N.Y. App. Div. LEXIS 247

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

DecidedJanuary 16, 2003

StatusPublished

This text of 301 A.D.2d 859 (Jones 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

Jones v. McCall, 301 A.D.2d 859, 753 N.Y.S.2d 397, 2003 N.Y. App. Div. LEXIS 247 (N.Y. Ct. App. 2003).

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Opinion

Peters, J.

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, inter alia, denied petitioner’s application for accidental disability retirement benefits.

On July 4, 1997, while working as a police officer for the Port Authority of New York and New Jersey, petitioner stepped on an unstable drain grate and fell to the ground, injuring his neck and left knee. His application for, inter alia, accidental disability retirement benefits was thereafter denied following a hearing at which medical evidence was presented. In denying petitioner’s application, the Hearing Officer concluded that the medical proof did not support a finding of permanent disability. Specifically, the Hearing Officer found that “[t]he conditions complained of are substantially grounded on complaints, which are subjective, rather than being founded on more credible objective clinical findings and tests which would support a finding of permanent disability.” Respondent concurred with the Hearing Officer’s findings and also denied the application. This CPLR article 78 proceeding ensued.

[860]*860The Attorney General concedes that the Hearing Officer applied a standard inconsistent with this Court’s decisions in Matter of Palmer v McCall (288 AD2d 680) and Matter of Johnson v McCall (281 AD2d 730) in evaluating the medical evidence adduced at the hearing. Based upon our review of the record and the Hearing Officer’s decision, we agree. Accordingly, “the appropriate remedy is to annul the determination and remit the matter to respondent to render a determination that is sufficient to permit our review” (Matter of Palmer v McCall, supra at 680).

Cardona, P.J., Crew III, Carpinello and Rose, JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Peters, J.

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, inter alia, denied petitioner’s application for accidental disability retirement benefits.

On July 4, 1997, while working as a police officer for the Port Authority of New York and New Jersey, petitioner stepped on an unstable drain grate and fell to the ground, injuring his neck and left knee. His application for, inter alia, accidental disability retirement benefits was thereafter denied following a hearing at which medical evidence was presented. In denying petitioner’s application, the Hearing Officer concluded that the medical proof did not support a finding of permanent disability. Specifically, the Hearing Officer found that “[t]he conditions complained of are substantially grounded on complaints, which are subjective, rather than being founded on more credible objective clinical findings and tests which would support a finding of permanent disability.” Respondent concurred with the Hearing Officer’s findings and also denied the application. This CPLR article 78 proceeding ensued.

[860]*860The Attorney General concedes that the Hearing Officer applied a standard inconsistent with this Court’s decisions in Matter of Palmer v McCall (288 AD2d 680) and Matter of Johnson v McCall (281 AD2d 730) in evaluating the medical evidence adduced at the hearing. Based upon our review of the record and the Hearing Officer’s decision, we agree. Accordingly, “the appropriate remedy is to annul the determination and remit the matter to respondent to render a determination that is sufficient to permit our review” (Matter of Palmer v McCall, supra at 680).

Cardona, P.J., Crew III, Carpinello and Rose, JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

301 A.D.2d 859, 753 N.Y.S.2d 397, 2003 N.Y. App. Div. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-mccall-nyappdiv-2003.

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