Anderson v. N.Y. State Local E.R.S.S

Full title: IN THE MATTER OF MOLLY L. ANDERSON, Petitioner, v. NEW YORK STATE AND…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 19, 2003

306 A.D.2d 744 (N.Y. App. Div. 2003)

760 N.Y.S.2d 366

Opinion

93137

Decided and Entered: June 19, 2003.

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 the Comptroller which denied petitioner's application for disability retirement benefits.

Carol R. Rosenthal, Buffalo, for petitioner.

Eliot Spitzer, Attorney General, Albany (William E. Storrs of counsel), for respondent.

Before: Mercure, J.P., Crew III, Peters, Rose and Lahtinen, JJ.

MEMORANDUM AND JUDGMENT

Crew III, J.

Petitioner's application for disability retirement benefits was denied and, following a hearing and redetermination, a Hearing Officer again denied the application, finding that petitioner was not permanently incapacitated from the performance of her duties. The Comptroller upheld that determination and this CPLR article 78 proceeding ensued.

Petitioner assails the testimony and ultimate opinion of respondent's expert, a board-certified neurologist. Suffice to say that the Comptroller is empowered to credit such opinion over that of petitioner's treating physician (see Matter of Chrysler v. McCall, 292 A.D.2d 700, 701, lv denied 98 N.Y.2d 611) and, having done so, there exists substantial evidence to support the Comptroller's determination. Accordingly, the underlying determination is confirmed.

Mercure, J.P., Peters, Rose and Lahtinen, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.