Nugent v. New York State & Local Employees' Retirement System

255 A.D.2d 682, 679 N.Y.S.2d 208, 1998 N.Y. App. Div. LEXIS 11669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1998
• Status: Published

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 Comptroller which denied petitioner’s application for accidental disability retirement benefits.

Petitioner, a highway general foreman, applied for accidental disability retirement benefits because of injuries he allegedly sustained to his neck, back and arms after being attacked by a co-worker. Petitioner’s application was denied on the ground that he was not permanently incapacitated from performing his employment duties. Substantial evidence supports the determination. Sherwood Greiner, an orthopedic surgeon who examined petitioner and testified as an expert on behalf of respondent State and Local Employees’ Retirement System, opined that petitioner’s subjective complaints of pain were inconsistent with the medical findings. It was Greiner’s opinion that petitioner was not permanently incapacitated from the performance of his employment duties. While petitioner presented medical testimony to the contrary, it is within respondent Comptroller’s authority to evaluate conflicting medical evidence and to accept one medical expert’s opinion over that of another (see, Matter of Senecal v McCall, 252 AD2d 630). Furthermore, the record fails to support petitioner’s contention that he was denied a fair hearing, notwithstanding the fact that the Hearing Officer accepted the proposed findings of fact and conclusion of law of respondents’ counsel.

Cardona, P. J., Mikoll, Yesawich Jr., Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.