McGarry v. McCall

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Comptroller, which denied petitioner’s request for accidental disability retirement benefits. Petitioner was employed as a police officer by the Suffolk County Police Department in February 1979 when the patrol car he was operating was rear-ended by another vehicle. In December 1990, petitioner applied for accidental disability retirement benefits on the ground that injuries to his neck and back sustained in the 1979 accident had permanently incapacitated him from performing his duties as a police officer. When this application was denied, petitioner initiated this CPLR article 78 review proceeding. There is substantial evidence in the record to support the finding that petitioner failed to sustain his burden of proving that he is incapacitated from performing his duties as a police officer. 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 examination of 887 petitioner, together with his review of various tests performed upon him, led to the conclusion that petitioner did not sustain a disabling injury as a result of the accident in 1979 and that he could continue to perform the full duties of a police officer, as he had in the years following the accident. While the testimony given by petitioner’s treating physician was inconsistent with this opinion, it lies within respondent Comptroller’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Zolzer v New York State Comptroller, New York State & Local Employees’ Retirement Sys. & Police & Fire Retirement Sys., 196 AD2d 934, 935; Matter of Newman v New York State Police & Firemen’s Retirement Sys., 186 AD2d 306, 307, lv denied 81 NY2d 701). The Comptroller’s determination is accordingly confirmed. Mikoll, J. P., Mercure, Casey, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.