Carman v. McCall — 210 A.D.2d 663

Majority

p. 663

In the Matter of John E. Carman, Petitioner, v H. Carl McCall, as Comptroller of the State of New York, and Ad

p. 664

ministrative Head of the New York State and Local Employees' Retirement System, State of New York, Respondent.

[620 NYS2d 18]

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent which denied petitioner’s applications for accidental and ordinary disability retirement benefits.

By separate determinations, respondent denied petitioner’s applications for accidental and ordinary disability retirement benefits. In each determination, respondent concluded that petitioner was not permanently incapacitated from performing the duties of his employment as a sanitation man. Respondent’s expert testified that although petitioner suffered from a condition known as chondromalacia of the joint in the right knee, which might cause some pain after a day’s work, the condition did not permanently incapacitate petitioner from the performance of his duties. The testimony of respondent’s expert provides substantial evidence to support respondent’s determinations and, therefore, they must be confirmed (see, Matter of Ramseur v Regan, 154 AD2d 869 ).

Mikoll, J. P., Crew III and Peters, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.

Cases cited

Ramseur v. Regan 154 AD2d 869 N.Y. App. Div. 1989-10-26 p. 664