Bilodeau 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 denying petitioner’s application for disability retirement benefits. Petitioner’s application for disability retirement benefits was denied on the ground that he was not permanently incapacitated from performing his duties as a heavy equipment operator. Significantly, respondent credited the opinion of the medical expert who testified on behalf of the New York State and Local Employees’ Retirement System that his examination of petitioner revealed no objective finding of any neurological impingement and that the injury to petitioner’s back did not permanently disable him from performing his duties. Given respondent’s authority to credit this testimony over the contrary proof offered by petitioner’s expert, we find that the determination is supported by substantial evidence (see, Matter of Mitchell v McCall, 234 AD2d 879). Petitioner’s remaining contentions have been reviewed and found to be lacking in merit. Cardona, P. J., Mikoll, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.