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Matter of Farinella v. Pitt

Appellate Division of the Supreme Court of New York, Third Department
Aug 29, 1991
175 A.D.2d 977 (N.Y. App. Div. 1991)

Opinion

August 29, 1991

Appeal from the Supreme Court, Albany County.


In order for petitioner to be eligible for performance of duty retirement benefits, petitioner must prove that, at the time his application was filed, he was physically incapacitated from performing his duties as a firefighter (see, Retirement and Social Security Law § 363-c). The record contains conflicting medical opinions as to whether petitioner was permanently disabled on that date. It is within respondent Comptroller's authority to evaluate and reject conflicting medical evidence (see, Matter of Huether v Regan, 169 A.D.2d 907), and the Comptroller is free to credit one physician's testimony over that of another (see, Matter of Rubinski v New York State Local Police Fire Retirement Sys., 156 A.D.2d 888, 889). Here, James Holmblad testified that petitioner was capable of performing his duties as of the date of his examination. Accordingly, because the Comptroller's determination denying petitioner's application is supported by substantial evidence, it must be upheld (see, supra).

Mahoney, P.J., Casey, Mikoll, Levine and Crew III, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.


Summaries of

Matter of Farinella v. Pitt

Appellate Division of the Supreme Court of New York, Third Department
Aug 29, 1991
175 A.D.2d 977 (N.Y. App. Div. 1991)
Case details for

Matter of Farinella v. Pitt

Case Details

Full title:In the Matter of NICHOLAS E. FARINELLA, Petitioner, v. DE FOREST C. PITT…

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

Date published: Aug 29, 1991

Citations

175 A.D.2d 977 (N.Y. App. Div. 1991)
573 N.Y.S.2d 784

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