Kesick v. New York State & Local Employees' Retirement System

257 A.D.2d 831, 683 N.Y.S.2d 645, 1999 N.Y. App. Div. LEXIS 260

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1999
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Comptroller which denied petitioner’s request for accidental disability retirement benefits.

Substantial evidence supports the determination denying petitioner’s application for accidental disability retirement benefits on the ground that petitioner was not totally disabled from the performance of his duties as a police officer as a result of injuries sustained to his left knee. Based upon his physical examination of petitioner and review of his X rays, David Tucker, an orthopedic surgeon, opined that there was insufficient evidence to conclude that petitioner was permanently disabled from the performance of his duties and noted that petitioner’s discomfort could be controlled by over-the-counter medication. We reject petitioner’s contention that the countervailing medical evidence presented on his behalf was ignored. It is within the Comptroller’s authority to assess the conflicting medical evidence and to accept one medical opinion over that of another (see, Matter of Senecal v McCall, 252 AD2d 630; Matter of Hamlet v McCall, 222 AD2d 883). We accordingly find no reason to disturb the Comptroller’s determination, notwithstanding that there may be evidence in the record to support a contrary conclusion (see, Matter of Spencer v New York State & Local Employees’ Retirement Sys., 220 AD2d 792, 793).

Yesawich Jr., J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.