Rubiano v. New York City Employees' Retirement System , 700 N.Y.S.2d 694 ( 2000 )

—Order and judgment (one paper), Supreme Court, New York County (Jane Solomon, J.), entered October 30, 1998, which denied petitioner’s application pursuant to CPLR article 78 to annul the denial of his application for accident disability retirement benefits, and dismissed the petition, unanimously affirmed, without costs.

The determination of respondent’s Medical Board that petitioner was not incapacitated for the performance of city-service was predicated upon “some credible evidence” and, accordingly, respondent’s determination denying petitioner accident disability retirement benefits was not arbitrary and capricious and may not be disturbed (Matter of Borenstein v New York City Empls. Retirement Sys., 88 NY2d 756, 760-761; Matter of Salem v New York City Empls. Retirement Sys., 237 AD2d 120, lv denied 90 NY2d 802). Concur—Nardelli, J. P., Tom, Lerner, Rubin and Saxe, JJ.