Sagala v. McCall

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, [780] entered in Albany County) to review a determination of respondent which denied petitioner’s request for disability retirement benefits. Petitioner was employed as an investigator in the auto theft unit of the Department of Motor Vehicles when he injured his back while searching under the seats of a car. His subsequent application for disability retirement benefits was denied on the ground that he was not permanently incapacitated from performing his duties. Substantial evidence supports that determination. The orthopedic surgeon who testified on behalf of the New York State and Local Employees’ Retirement System stated that he performed a complete physical examination of petitioner, subjecting him to a full range of neurological and orthopedic tests, none of which showed any objective signs of a disabling condition. While petitioner’s treating physician testified to the contrary, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert witness over that of another (see, Matter of Longendyke v Regan, 195 AD2d 695, 696). Crew III, J. P., WThite, Yesawich Jr., Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.