Giebner v. McCall

—Carpinello, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the [706] Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s applications for ordinary and accidental disability retirement benefits. Petitioner, a motor equipment operator, filed applications for ordinary and accidental disability retirement benefits alleging that he sustained injuries to his neck, shoulder, back, wrists, knees and feet when he was struck by a 20-foot-long section of galvanized pipe while working on a job site. Following a hearing at which the parties elected to rely solely upon medical records, respondent denied the applications finding, inter alia, that petitioner was not permanently incapacitated from the performance of his duties. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination and we confirm. Substantial evidence supports respondent’s determination that petitioner failed to sustain his burden of proving his entitlement to benefits (see, Matter of City of Schenectady v McCall, 245 AD2d 708, 709). Arthur Leve, a physician who evaluated petitioner on behalf of the State and Local Employees’ Retirement System, indicated that the findings of his examination and his review of petitioner’s medical records were insufficient to consider petitioner permanently incapacitated from the performance of his duties as a motor equipment operator. Although the record contains contradictory medical evidence indicating that petitioner was permanently disabled, it was within respondent’s discretion to evaluate the differing medical opinions and resolve the conflict against petitioner (see, Matter of Senecal v McCall, 252 AD2d 630, 631; Matter of Gallello v McCall, 247 AD2d 693; Matter of Sloan v McCall, 238 AD2d 666, 667). Because our resolution of this issue is determinative of both of petitioner’s applications (see, Retirement and Social Security Law §§ 62, 63), we need not address his remaining arguments (see, Matter of Harvey v McCall, 237 AD2d 863, 864). Cardona, P. J., Crew III, Spain and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.