Segura v. City of Long Beach

230 A.D.2d 799, 646 N.Y.S.2d 823, 1996 N.Y. App. Div. LEXIS 8378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 12, 1996
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent City of Long Beach Fire Department, dated December 27, 1994, which, after a hearing, found that the petitioner’s injuries were not caused by his service to the City of Long Beach.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner’s contention, a firefighter who qualifies for a disability retirement pension is not automati- . cally entitled to the benefits of General Municipal Law § 207-a (see, Matter of Sutka v Conners, 73 NY2d 395; Matter of Flynn v Zaleski, 212 AD2d 706). Here, where the State Comptroller did not determine that the petitioner’s injury was caused as a result of the performance of his duties, the respondents were entitled to independently consider the cause of the petitioner’s injury in determining the petitioner’s entitlement to benefits under General Municipal Law § 207-a (see, Matter of Flynn v Zaleski, supra). Since there was conflicting medical evidence as to the cause of the petitioner’s injury, the respondents were free to credit one physician’s testimony over that of the other physician (see, Matter of Flynn v Zaleski, supra; Matter of Newell v Regan, 202 AD2d 771, 772). We find no reason to disturb their determination.

We have examined the petitioner’s remaining contentions and find them to be without merit.

Bracken, J. P., Miller, Copertino and Krausman, JJ., concur.