Daniels v. McCall , 727 N.Y.S.2d 346 ( 2001 )

—Mugglin, J.

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 disability retirement benefits.

In October 1996, petitioner, who was employed as a youth division aide, applied for disability retirement benefits based upon a degenerative back condition and a fractured right heel sustained in a January 1996 auto accident. Upon finding that petitioner was not permanently incapacitated from the performance of her duties as a youth division aide, respondent denied the application. In this CPLR article 78 proceeding to review the determination, petitioner contends that respondent erred in relying on the opinion of the orthopedic expert for the State and Local Employees’ Retirement System instead of the opinions of petitioner’s treating podiatrist and chiropractor.

Where, as here, the Retirement System’s expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert’s opinion generally will not be considered so lacking in foundation or rationality as to preclude respondent from exercising the authority to evaluate conflicting medical opinion (see, Matter of Harper v McCall, 277 AD2d 589). Petitioner’s criticisms of the expert’s opinion are based on the type of alleged deficiencies that presented a question of credibility for respondent to resolve (compare, id., with Matter of Nopper v McCall, 222 AD2d 884; see, Matter of Silverhardt v State of New York, 269 AD2d 652). Our review of the record discloses no basis to disturb respondent’s determination and, therefore, it must be confirmed.

Cardona, P. J., Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.