Kubica v. New York State Employees' Retirement System

171 A.D.2d 917, 566 N.Y.S.2d 787, 1991 N.Y. App. Div. LEXIS 2643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1991
• Status: Published

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 the Comptroller which denied petitioner’s application for ordinary disability retirement benefits.

The record contains conflicting medical opinions as to petitioner’s physical condition and her claim that she was unable to return to her job as a food service worker due to chronic disc problems. The Comptroller’s evaluation of such conflicting opinions must be accepted, however, and he may accord more weight to the opinion of one physician over another (see, Matter of McGrath v Regan, 109 AD2d 1007). Here, he could properly credit the opinion of respondent’s physician who stated that petitioner was not permanently disabled and was capable of returning to work (see, Matter of Clay v Regan, 90 AD2d 625). Accordingly, since the determination here is supported by substantial evidence, it must be upheld (see, supra).

Determination confirmed, and petition dismissed, without costs. Casey, J. P., Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.