Opinion
February 6, 1992
Appeal from the Supreme Court, Albany County.
It is undisputed that Arthur Boyd, Jr., on whose behalf petitioner commenced this CPLR article 78 proceeding, is incapacitated from performing his duties as a firefighter due to coronary heart disease. The determinative issue in this proceeding is whether Boyd's incapacity was the result of a disability sustained in service as a firefighter. If there is conflicting medical opinion presented, respondent's evaluation of such testimony must be accepted (see, Matter of Kubica v. New York State Employees' Retirement Sys., 171 A.D.2d 917; Matter of Legault v. Regan, 105 A.D.2d 505, 506). Petitioner's medical expert could not state with any certainty that Boyd's occupation caused or contributed to his disease. Respondent's medical expert, however, unequivocally testified that smoke inhalation and other conditions of Boyd's occupation do not have a "positive correlation" to coronary heart disease. He also opined that emotional and physical stresses of a firefighter do not cause coronary heart disease. In addition, both experts testified that Boyd's heavy cigarette smoking contributed to his disease. We find that this testimony, coupled with other evidence in the record, provided competent evidence to rebut the "heart presumption" provided in Retirement and Social Security Law § 363-a (1) (see, Matter of Nerney v. New York State Policemen's Firemen's Retirement Sys., 156 A.D.2d 775, lv denied 75 N.Y.2d 710; see also, Matter of Ashley v. New York State Policemen's Firemen's Retirement Sys., 132 A.D.2d 90, 92).
Weiss, P.J., Levine, Mercure and Mahoney, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.