Mitchell v. McCall

Appellate Division of the Supreme Court of New York

Mitchell v. McCall

234 A.D.2d 879, 651 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 12852

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

DecidedDecember 26, 1996

StatusPublished

Cited by1 cases

This text of 234 A.D.2d 879 (Mitchell 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

Mitchell v. McCall, 234 A.D.2d 879, 651 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 12852 (N.Y. Ct. App. 1996).

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Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, [880]*880entered in Albany County) to review a determination of respondent which denied petitioner’s request for disability retirement benefits.

There is substantial evidence in the record to support respondent’s finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from performing her duties as a Social Worker Assistant II at a psychiatric center. While there was some conflict in the testimony given by petitioner’s treating chiropractor and that of the orthopedic surgeon who testified on behalf of the New York State and Local Employees’ Retirement System, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Longendyke v Regan, 195 AD2d 695, 696). Respondent’s determination is accordingly confirmed. Petitioner’s remaining contentions have been examined and found to be lacking in merit.

Cardona, P. J., Mikoll, Crew III, White and Peters, 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, [880]*880entered in Albany County) to review a determination of respondent which denied petitioner’s request for disability retirement benefits.

There is substantial evidence in the record to support respondent’s finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from performing her duties as a Social Worker Assistant II at a psychiatric center. While there was some conflict in the testimony given by petitioner’s treating chiropractor and that of the orthopedic surgeon who testified on behalf of the New York State and Local Employees’ Retirement System, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Longendyke v Regan, 195 AD2d 695, 696). Respondent’s determination is accordingly confirmed. Petitioner’s remaining contentions have been examined and found to be lacking in merit.

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

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Bluebook (online)

234 A.D.2d 879, 651 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 12852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-mccall-nyappdiv-1996.

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