Kreppein v. New York State & Local Police & Fire Retirement System

270 A.D.2d 732, 706 N.Y.S.2d 362, 2000 N.Y. App. Div. LEXIS 3087

Opinion

—Carpinello, 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 the Comptroller which denied petitioner’s application for disability retirement benefits.

Petitioner, a State Trooper, filed an application for disability retirement benefits based upon an injury to his right knee. Following a hearing, the Comptroller denied the application upon finding that petitioner was not incapacitated from performing his duties as a State Trooper. Petitioner commenced this CPLR article 78 proceeding to review the Comptroller’s determination.

The testimony of respondent’s orthopedic expert that, based upon a physical examination of petitioner and X rays of the knee, petitioner had no significant disability that would preclude him from performing the duties of a State Trooper, which the Comptroller credited, provides substantial evidence to support the Comptroller’s determination despite the existence of contrary testimony by claimant’s expert (see, Matter of Henshaw v McCall, 242 AD2d 827; Matter of Dubois v McCall, 239 AD2d 774). In view of petitioner’s failure to demonstrate any actual prejudice, the substitution of a new Hearing Officer following the close of the hearing, which was authorized by State Administrative Procedure Act § 303, provides no basis to disturb the determination (see, Matter of Park v Board of Regents, 222 AD2d 946, 949; Matter of Kelly v Duffy, 144 AD2d 792).

Mercure, J. P., Crew III, Peters and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.