Khurana v. Kelly

Appellate Division of the Supreme Court of New York

Khurana v. Kelly

73 A.D.3d 497, 901 N.Y.S.2d 201

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

DecidedMay 11, 2010

StatusPublished

Cited by1 cases

This text of 73 A.D.3d 497 (Khurana v. Kelly) 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

Khurana v. Kelly, 73 A.D.3d 497, 901 N.Y.S.2d 201 (N.Y. Ct. App. 2010).

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Opinion

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered October 31, 2008, which denied petitioner police officer’s application to annul respondents’ determination denying petitioner an accident disability pension, and dismissed the petition, unanimously affirmed, without costs.

The Medical Board’s finding that petitioner is not disabled for full duty is supported by “some credible evidence” (see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760-761 [1996]), including MRI results indicating mild abnormality in the, supraspinatus, but no tear, and the absence of any objective findings, such as atrophy. Petitioner’s case was considered by the Medical Board on four separate occasions. On each occasion, the Medical Board reviewed all the medical evidence submitted by petitioner, including the results of MRIs, and conducted its own complete orthopedic examinations of the petitioner. Despite petitioner’s continuing claim of limited range of motion in his left shoulder, the Medical Board found no evidence of a disabling condition. 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]). The courts may not “substitute [their] own judgment for that of the Medical Board” (Borenstein at 761 [internal quotation marks and citations omitted]).

We have considered petitioner’s other arguments, including that the Medical Board “did not adequately explain why it resolved conflicts in the medical evidence the way it did, and find them unavailing” (see Schwartz v Kelly, 36 AD3d 563, 564 [2007]). Concur—Saxe, J.P., Friedman, Nardelli, Freedman and Abdus-Salaam, JJ.

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Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered October 31, 2008, which denied petitioner police officer’s application to annul respondents’ determination denying petitioner an accident disability pension, and dismissed the petition, unanimously affirmed, without costs.

The Medical Board’s finding that petitioner is not disabled for full duty is supported by “some credible evidence” (see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760-761 [1996]), including MRI results indicating mild abnormality in the, supraspinatus, but no tear, and the absence of any objective findings, such as atrophy. Petitioner’s case was considered by the Medical Board on four separate occasions. On each occasion, the Medical Board reviewed all the medical evidence submitted by petitioner, including the results of MRIs, and conducted its own complete orthopedic examinations of the petitioner. Despite petitioner’s continuing claim of limited range of motion in his left shoulder, the Medical Board found no evidence of a disabling condition. 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]). The courts may not “substitute [their] own judgment for that of the Medical Board” (Borenstein at 761 [internal quotation marks and citations omitted]).

We have considered petitioner’s other arguments, including that the Medical Board “did not adequately explain why it resolved conflicts in the medical evidence the way it did, and find them unavailing” (see Schwartz v Kelly, 36 AD3d 563, 564 [2007]). Concur—Saxe, J.P., Friedman, Nardelli, Freedman and Abdus-Salaam, JJ.

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Bluebook (online)

73 A.D.3d 497, 901 N.Y.S.2d 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khurana-v-kelly-nyappdiv-2010.

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