Opinion
November 21, 1972
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the New York State Policemen's and Firemen's Retirement System which denied petitioner's application for accidental disability retirement pursuant to section 363 Retire. Soc. Sec. of the Retirement and Social Security Law. On November 13, 1969 petitioner was employed as a police officer by the Port of New York Authority and was injured in the course of his duties. He subsequently filed an application for accidental disability which was denied by the State Comptroller. He timely filed for a hearing and redetermination. After a hearing it was determined that petitioner had some permanent disability but not sufficient to entitle him to an accidental disability retirement. This proceeding ensued and petitioner contends that respondent's determination is not supported by substantial evidence. We disagree. Petitioner's proof, in addition to his own testimony, consisted of that of Dr. Panzarella who attended petitioner and concluded that petitioner had a condition which prevented him from performing his usual duties as a police officer. This testimony was contradicted by Dr. Roth, an orthopedic surgeon, on behalf of the Retirement System. He concluded petitioner "was well able to perform all his duties of his position without prejudice to his well-being." While Dr. Roth saw petitioner only once, he made an examination and his testimony was specific and supported by precise testing. The conflict of medical testimony presented a factual issue and we conclude that the record taken as a whole contains substantial evidence to substantiate the respondent's conclusion. Consequently, we must not disturb it. The authorities relied upon by the appellant are inapposite. Determination confirmed, and petition dismissed, without costs. Staley, Jr., J.P., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.