Harr v. State , 635 N.Y.S.2d 114 ( 1995 )

—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 Comptroller which, inter alia, denied petitioner’s application for accidental disability retirement benefits.

Petitioner was employed as an information processing specialist for the Department of Labor. In May 1990, she injured her back when she tripped and fell over some computer cables which had temporarily been placed on the floor of her office. Respondent Comptroller denied petitioner’s application for accidental disability retirement benefits on the basis that petitioner was not permanently incapacitated for the performance of her duties. She argues that this determination is arbitrary, capricious and not supported by substantial evidence. The record contains conflicting medical testimony regarding the cause of petitioner’s pain and whether she is permanently disabled. The Comptroller had the discretion to evaluate this testimony and give greater weight to the testimony of the orthopedic surgeon called by respondent State and Local Employees’ Retirement System, who opined that petitioner was not permanently incapacitated for the performance of her duties. This constitutes substantial evidence supporting the administrative determination. Petitioner’s remaining arguments have been considered and rejected as unpersuasive.

Cardona, P. J., Mikoll, Mercure, Casey and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.