Moore v. McCall

Appellate Division of the Supreme Court of New York

Moore v. McCall

261 A.D.2d 767, 689 N.Y.S.2d 779, 1999 N.Y. App. Div. LEXIS 5321

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

DecidedMay 13, 1999

StatusPublished

Cited by2 cases

This text of 261 A.D.2d 767 (Moore 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

Moore v. McCall, 261 A.D.2d 767, 689 N.Y.S.2d 779, 1999 N.Y. App. Div. LEXIS 5321 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany [768]*768County) to review a determination of respondent which denied petitioner’s application for ordinary disability retirement benefits.

Petitioner, a former employee of the Office of General Services, filed an application for ordinary disability retirement benefits alleging that she is permanently disabled from employment as a truck dispatcher because of lower back pain. Petitioner’s application was ultimately disapproved following a hearing, based upon a finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from the performance of her duties. Petitioner then commenced this CPLR article 78 proceeding challenging the determination.

We confirm. Given the facts and the record before us, including petitioner’s own description of her job duties, we conclude that there is substantial evidence to support respondent’s determination. While it is true that the medical evidence indicated that petitioner suffered from degenerative disc disease of her lumbar spine, orthopedic surgeon John Dolan, who examined her on behalf of the New York State and Local Employees’ Retirement System, took this factor, along with petitioner’s obesity and her description of her duties into account in opining that she was nevertheless not incapacitated from performing her job. Although petitioner challenges the credibility of the medical evidence presented against her and the failure to credit the expert proof presented on her behalf, it was clearly within the province of respondent to resolve all conflicts in medical opinion (see, Matter of Nugent v New York State & Local Employees’ Retirement Sys., 255 AD2d 682). Under the circumstances, we find no reason to disturb the administrative determination in this regard.

Mikoll, J. P., Crew III, Spain, Carpinello and Graffeo, 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 [768]*768County) to review a determination of respondent which denied petitioner’s application for ordinary disability retirement benefits.

Petitioner, a former employee of the Office of General Services, filed an application for ordinary disability retirement benefits alleging that she is permanently disabled from employment as a truck dispatcher because of lower back pain. Petitioner’s application was ultimately disapproved following a hearing, based upon a finding that petitioner failed to sustain her burden of proving that she was permanently incapacitated from the performance of her duties. Petitioner then commenced this CPLR article 78 proceeding challenging the determination.

We confirm. Given the facts and the record before us, including petitioner’s own description of her job duties, we conclude that there is substantial evidence to support respondent’s determination. While it is true that the medical evidence indicated that petitioner suffered from degenerative disc disease of her lumbar spine, orthopedic surgeon John Dolan, who examined her on behalf of the New York State and Local Employees’ Retirement System, took this factor, along with petitioner’s obesity and her description of her duties into account in opining that she was nevertheless not incapacitated from performing her job. Although petitioner challenges the credibility of the medical evidence presented against her and the failure to credit the expert proof presented on her behalf, it was clearly within the province of respondent to resolve all conflicts in medical opinion (see, Matter of Nugent v New York State & Local Employees’ Retirement Sys., 255 AD2d 682). Under the circumstances, we find no reason to disturb the administrative determination in this regard.

Mikoll, J. P., Crew III, Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

261 A.D.2d 767, 689 N.Y.S.2d 779, 1999 N.Y. App. Div. LEXIS 5321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-mccall-nyappdiv-1999.

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