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Guerra v. McCall

255 A.D.2d 684 Court N.Y. App. Div. Decision date 1998-11-05 English

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p. 684
In the Matter of Catherine Guerra, Petitioner, v H. Carl McCall, as New York State Comptroller, Respondent.
[679 NYS2d 207]

—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 disability retirement benefits.

While performing her duties as a keyboard specialist, petitioner tripped on telephone wires and as a result of her fall allegedly sustained injuries to her right arm, neck and shoulders. Respondent subsequently denied petitioner’s application for disability retirement benefits on the ground that she failed to prove that she was permanently incapacitated from performing her duties. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the administrative determination.

We confirm. The board-certified orthopedic surgeon who testi

p. 685
fled on behalf of the New York State and Local Employees’ Retirement System opined that based upon his examination of petitioner, his review of her X rays and petitioner’s inconsistent subjective complaints of pain, he concluded that she was not permanently incapacitated from her job. He also testified that he disagreed with the diagnosis of petitioner’s neurologist that petitioner suffered from right ulnar neuropathy. Inasmuch as it is within respondent’s authority to evaluate conflicting medical evidence and accept one medical expert’s opinion over that of another (see, Matter of Bare v McCall, 249 AD2d 770 ; Matter of Rockwell v State of New York, 249 AD2d 764 ), substantial evidence supports respondent’s determination that petitioner failed to sustain her burden of demonstrating that she was entitled to disability retirement benefits (see, Matter of Nicholson v McCall, 250 AD2d 994 ).

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

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