Lasher v. McCall

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

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.

Following 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.