Bull v. McCall , 736 N.Y.S.2d 916 ( 2002 )

—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 accidental disability retirement benefits.

Petitioner, a police officer, filed an application for accidental disability retirement benefits in 1995 based upon an injury to his cervical spine sustained in a 1988 automobile accident which occurred while he was on duty. After a hearing at which the medical experts for petitioner and the Police and Fire Retirement System offered conflicting opinions regarding petitioner’s condition, respondent determined that petitioner was not disabled from the performance of his duties. In this CPLR article 78 proceeding to review the determination, petitioner contends that the testimony of the Retirement System’s expert was insufficient to provide the substantial evidence required to support respondent’s determination. We disagree.

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). We reject petitioner’s contention that because the Retirement System’s expert was an orthopedist, respondent erred in relying on the expert’s opinion regarding what petitioner claims is a disability of neurologic origin (see, Matter of Kohli v McCall, 279 AD2d 859). 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 (see, Matter of Daniels v McCall, 285 AD2d 723). Accordingly, despite the existence of expert medical opinion contrary to that of the Retirement System’s expert, there is no basis to disturb the determination.

Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.