De Giacomo v. Regan

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller, which denied petitioner’s application for accidental disability retirement. The Comptroller denied petitioner’s application upon the ground that the petitioner is not permanently incapacitated for the performance of his duties as a garage attendant. Contrary to petitioner’s assertion, this determination should be confirmed. The record contains conflicting medical testimony, the evaluation of which by the Comptroller must be accepted (Matter of Sica v New York State Employees’ Retirement System, 75 AD2d 927, affd 52 NY2d 941; Matter of Mathews v Regan, 69 AD2d 970, 971, mot for lv to app den 48 NY2d 610; Matter of D’Agostino v Levitt, 68 AD2d 1008). Petitioner also contends that the hearing officer erroneously applied a substantial evidence standard in reviewing the Comptroller’s initial determination denying benefits. This contention is without merit. Subdivision 1 of section 306 of the State Administrative Procedure Act provides for the application of the substantial evidence standard by an agency conducting an adjudicatory hearing (cf. Martinez v Blum, 624 F2d 1). Finally, petitioner argues that the hearing officer prejudged the credibility of respondents’ expert. A review of the record, however, does not support this assertion. Determination confirmed, and petition dismissed, without costs. Kane, J.P., Casey, Mikoll, Yesawich, Jr., and Herlihy, JJ., concur.