Simmons v. Herkommer — 62 N.Y.2d 711

Majority

p. 711

In the Matter of Michael Simmons, Appellant, v Harold Herkommer, as Executive Director of the New York City Employees’ Retirement System, et al., Respondents.

Decided May 3, 1984

p. 712

Headnote

APPEARANCES OF COUNSEL

Richard A. Dienst and Peter A. Schwartz for appellant.

Frederick A. 0. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The presumption created by section 207-k of the General Municipal Law is rebuttable (Matter of Uniformed Firefighters Assn. v Beekman, 52 NY2d 463 , 472-473). The expert opinion of the Medical Board constituted competent evidence sufficient to rebut the presumption (Matter of Ferrigno v Board of Trustees of Police Pension Fund, 48 NY2d 788 ) and it was for the Board of Trustees to determine whether that opinion or the one offered by the petitioner’s expert was to be credited.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

Cases cited

Uniformed Firefighters Ass'n v. Beekman 52 NY2d 463 N.Y. 1981-04-02 at 472-473 p. 712
Ferrigno v. Board of Trustees of the Police Pension Fund 48 NY2d 788 N.Y. 1979-11-15 p. 712

Statutes and regulations cited

General Municipal Law p. 712