Condo v. McCall , 702 N.Y.S.2d 717 ( 2000 )

Mugglin, J.

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 which denied petitioner’s application for performance of duty disability retirement benefits.

Petitioner, a police officer for the Town of East Greenbush in Rensselaer County, applied for performance of duty disability retirement benefits based upon lower back injuries that he sustained in November 1996 while attempting to lift a stretcher into an ambulance. Following a hearing at which conflicting expert testimony was presented, respondent denied petitioner’s application based upon a finding that petitioner was not permanently incapacitated from the performance of his duties. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination and the matter was transferred to this Court.

We confirm. Based upon our review of the record, we find that substantial evidence supports respondent’s determination that petitioner was not permanently incapacitated from the performance of his duties as a police officer. Steven Silver, an orthopedic surgeon who evaluated petitioner on behalf of the State and Local Employees’ Retirement System, testified that the only abnormality noted during petitioner’s November 1997 examination was restricted range of motion, which Silver stated was a subjective finding over which the patient exercises a certain degree of control. Based upon the examination results and an MRI of petitioner’s spine which revealed only a moderate degenerative disk disease related to the aging process and a possible herniated lumbar disk which could not be attributed to the November 1996 incident, Silver opined that petitioner was not permanently incapacitated from the performance of his duties. The contrary opinions expressed by petitioner’s experts were primarily based upon petitioner’s subjective complaints and, in any event, presented a credibility issue for respondent to resolve (see, Matter of Arnold v McCall, 259 AD2d 830, 831; Matter of Mayo v McCall, 253 AD2d 977; Matter of Senecal v McCall, 252 AD2d 630). Petitioner’s remaining contentions have been considered and rejected as lacking in merit.

Mercure, J. P., Spain and Graffeo, JJ., concur; Carpinello, J., not taking part. Adjudged that the determination is confirmed, without costs, and petition dismissed.