Nickels v. McCall

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 request for accidental disability retirement benefits.

Petitioner was employed as a police officer by the City of Yonkers in Westchester County when he was injured while attempting to break up a fight. Petitioner’s subsequent application for accidental disability retirement benefits was denied on the ground that he was not permanently incapacitated from performing his duties as a police officer. Substantial evidence supports this determination. The orthopedic surgeon who testified as an expert witness on behalf of the New York State and Local Police and Fire Retirement System stated that his two physical examinations of petitioner, together with his review of various diagnostic test results, led to the conclusion that petitioner did not sustain a permanently disabling injury. While petitioner presented countervailing evidence, including testimony from his treating physician, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Flannery v McCall, 219 AD2d 770; Matter of Catalano v New York State Comptroller, 198 AD2d 662, 663). Petitioner’s remaining contentions have been examined and found to be lacking in merit.

Mercure, J. P., Crew III, Casey, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.