Sharkey v. McCall

Appellate Division of the Supreme Court of New York

Sharkey v. McCall

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

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

DecidedDecember 21, 1995

StatusPublished

Cited by1 cases

This text of 222 A.D.2d 930 (Sharkey 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

Sharkey v. McCall, 222 A.D.2d 930, 635 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 13371 (N.Y. Ct. App. 1995).

Pincite

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.

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

Cite This Page — Counsel Stack

Bluebook (online)

222 A.D.2d 930, 635 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 13371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharkey-v-mccall-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack