Kirby v. McCall

Appellate Division of the Supreme Court of New York

Kirby v. McCall

234 A.D.2d 885, 651 N.Y.S.2d 947

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

DecidedDecember 26, 1996

StatusPublished

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

Kirby v. McCall, 234 A.D.2d 885, 651 N.Y.S.2d 947 (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 Comptroller which denied petitioner’s application for accidental disability retirement benefits.

There is substantial evidence in the record to support the finding of respondent Comptroller that petitioner failed to sustain his burden of proving that he is permanently incapacitated, from performing his duties as a Park Maintenance Supervisor. While there was conflicting testimony from petitioner’s treating physician and the physician who testified on behalf of respondent New York State and Local Employees’ Retirement System, it lies within the Comptroller’s authority to evaluate contradictory 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; Matter of Newman v New York State Police & Firemen’s Retirement Sys., 186 AD2d 306, 307, lv denied 81 NY2d 701). The Comptroller’s determination is accordingly confirmed.

Cardona, P. J., Mikoll, White, Peters and Spain, 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 Comptroller which denied petitioner’s application for accidental disability retirement benefits.

There is substantial evidence in the record to support the finding of respondent Comptroller that petitioner failed to sustain his burden of proving that he is permanently incapacitated, from performing his duties as a Park Maintenance Supervisor. While there was conflicting testimony from petitioner’s treating physician and the physician who testified on behalf of respondent New York State and Local Employees’ Retirement System, it lies within the Comptroller’s authority to evaluate contradictory 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; Matter of Newman v New York State Police & Firemen’s Retirement Sys., 186 AD2d 306, 307, lv denied 81 NY2d 701). The Comptroller’s determination is accordingly confirmed.

Cardona, P. J., Mikoll, White, Peters and Spain, 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 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-mccall-nyappdiv-1996.

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