Lasher v. McCall

Appellate Division of the Supreme Court of New York

Lasher v. McCall

17 A.D.3d 763, 791 N.Y.S.2d 865, 2005 N.Y. App. Div. LEXIS 3616

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

DecidedApril 7, 2005

StatusPublished

This text of 17 A.D.3d 763 (Lasher 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

Lasher v. McCall, 17 A.D.3d 763, 791 N.Y.S.2d 865, 2005 N.Y. App. Div. LEXIS 3616 (N.Y. Ct. App. 2005).

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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 which denied petitioner’s application for disability retirement benefits.

[764]*764Following this Court’s annulment of respondent’s determination denying petitioner’s application for disability retirement benefits (304 AD2d 1016 [2003]), this case was remitted to respondent for further proceedings and a de novo determination denying petitioner’s application was thereafter issued. Petitioner argues that the de novo determination is not supported by substantial evidence inasmuch as respondent should have credited the opinion of petitioner’s treating physician over that of the Retirement System’s expert. While the two experts gave conflicting opinions concerning whether petitioner was permanently incapacitated from performing his duties as a carpenter, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Knight v New York State & Local Retirement Sys., 266 AD2d 774, 775 [1999]). The record makes clear that the Hearing Officer properly weighed these experts’ opinions, considering both objective and subjective medical evidence concerning petitioner’s condition. Accordingly, we find no reason to disturb the de novo determination.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, 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 which denied petitioner’s application for disability retirement benefits.

[764]*764Following this Court’s annulment of respondent’s determination denying petitioner’s application for disability retirement benefits (304 AD2d 1016 [2003]), this case was remitted to respondent for further proceedings and a de novo determination denying petitioner’s application was thereafter issued. Petitioner argues that the de novo determination is not supported by substantial evidence inasmuch as respondent should have credited the opinion of petitioner’s treating physician over that of the Retirement System’s expert. While the two experts gave conflicting opinions concerning whether petitioner was permanently incapacitated from performing his duties as a carpenter, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Knight v New York State & Local Retirement Sys., 266 AD2d 774, 775 [1999]). The record makes clear that the Hearing Officer properly weighed these experts’ opinions, considering both objective and subjective medical evidence concerning petitioner’s condition. Accordingly, we find no reason to disturb the de novo determination.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

17 A.D.3d 763, 791 N.Y.S.2d 865, 2005 N.Y. App. Div. LEXIS 3616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasher-v-mccall-nyappdiv-2005.

Opinion

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