Sharkey v. McCall

222 A.D.2d 930, 635 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 13371

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 accidental disability retirement benefits.

Petitioner, a Correction Sergeant, injured his head, neck and lower back when a chair in which he was sitting while on duty collapsed. After a hearing, respondent denied petitioner’s application for accidental disability retirement benefits finding that he was not permanently incapacitated for the performance of his duties. Contrary to petitioner’s assertion, we find that this determination is supported by substantial evidence. Although conflicting medical testimony was presented regarding the extent of petitioner’s disability, it was for respondent to evaluate the weight to be accorded this testimony. In addition, there was no objective evidence to establish that petitioner was permanently incapacitated. In view of this, we decline to disturb respondent’s determination. We have considered petitioner’s claim that he was denied due process by the Hearing Officer’s denial of his request to call a rebuttal witness and find it to be without merit.

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