Lasher v. McCall

304 A.D.2d 1016, 756 N.Y.S.2d 921, 2003 N.Y. App. Div. LEXIS 4122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2003
• Status: Published

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 respondent which denied petitioner’s application for disability retirement benefits.

Petitioner filed an application for disability retirement benefits under Retirement and Social Security Law article 15 after injuring his back while working as a carpenter for the Department of Correctional Services. Following the denial of his application, petitioner requested a hearing and redetermination. At the conclusion of the hearing, the Hearing Officer denied petitioner’s application. Respondent adopted the findings of the Hearing Officer and this CPLR article 78 proceeding ensued.

Upon our review, it appears that respondent applied an inappropriate legal standard in concluding that petitioner was not permanently incapacitated from performing the duties of a carpenter. Specifically, respondent adopted the Hearing Officer’s conclusion that “an award of disability must be based on something more than subjective complaints.” Although conflicting medical evidence was presented concerning the extent of petitioner’s disability, it is not clear from the determination that respondent exercised his authority to resolve that conflict. Accordingly, “the appropriate remedy is to annul the determination and remit the matter to respondent to render a determination that is sufficient to permit our review” (Matter of Johnson v McCall, 281 AD2d 730, 731 [2001]; see Matter of Palmer v McCall, 288 AD2d 680 [2001]).

Cardona, P.J., Mercure, Crew III and Rose, JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.