Opinion
2012-06-13
In the Matter of Kenneth DAVENPORT, petitioner, v. CITY OF MOUNT VERNON, et al., respondents.
Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Sean Dooley of counsel), for petitioner. Coughlin & Gerhart, LLP, Endicott, N.Y. (Paul J. Sweeney of counsel), for respondents.
Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Sean Dooley of counsel), for petitioner. Coughlin & Gerhart, LLP, Endicott, N.Y. (Paul J. Sweeney of counsel), for respondents.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Fire Commissioner of the City of Mount Vernon dated October 20, 2010, which adopted the recommendation of a hearing officer dated October 4, 2010, made after a hearing, and affirmed the denial of the petitioner's application for supplemental benefits pursuant to General Municipal Law § 207–a(2).
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The determination of the Fire Commissioner of the City of Mount Vernon (hereinafter the Commissioner), which adopted the recommendation of a hearing officer, and affirmed the denial of the petitioner's application for supplemental benefits pursuant to General Municipal Law § 207–a(2), was supported by substantial evidence ( see Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140;300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183;Matter of Collins v. Codd, 38 N.Y.2d 269, 270, 379 N.Y.S.2d 733, 342 N.E.2d 524). The record, among other things, contains evidence consisting of the reports of three orthopedic surgeons, each of whom concluded that the petitioner's condition was not caused by an accident that allegedly occurred on November 16, 1994. The Commissioner had the authority to evaluate conflicting medical evidence, and was free to credit evidence based on reports of one set of physicians over that of another set of physicians ( see Matter of D'Onofrio v. City of Mount Vernon, 226 A.D.2d 719, 720, 641 N.Y.S.2d 870;Matter of Flynn v. Zaleski, 212 A.D.2d 706, 622 N.Y.S.2d 791).
The petitioner's remaining contentions are without merit.