Opinion
03-24-2017
In the Matter of Adolphus BARKOR, Petitioner, v. CITY OF BUFFALO, Respondent.
Creighton, Johnsen & Giroux, Buffalo (Catherine Creighton of Counsel), for Petitioner. Timothy A. Ball, Corporation Counsel, Buffalo (Mary B. Scarpine of Counsel), for Respondent.
Creighton, Johnsen & Giroux, Buffalo (Catherine Creighton of Counsel), for Petitioner.
Timothy A. Ball, Corporation Counsel, Buffalo (Mary B. Scarpine of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Petitioner, a City of Buffalo police officer, commenced this CPLR article 78 proceeding seeking to annul the determination of the Hearing Officer that he is not entitled to General Municipal Law § 207–c benefits. At the time of the subject on-duty injury, petitioner was already receiving benefits pursuant to section 207–c as a result of prior on-duty injuries. After returning to work in a light-duty capacity in the camera room, petitioner twisted his ankle exiting the restroom and allegedly exacerbated the prior injuries. Following a hearing, the Hearing Officer determined that petitioner was able to perform his light-duty assignment in the camera room and thus was not totally disabled. We agree with respondent that the Hearing
Officer's determination that petitioner could continue to perform the duties of a camera monitor is supported by substantial evidence (see Matter of Hensel v. City of Utica, 115 A.D.3d 1217, 1218, 982 N.Y.S.2d 627, lv. denied 23 N.Y.3d 908, 2014 WL 2936032, rearg. denied 24 N.Y.3d 975, 995 N.Y.S.2d 699, 20 N.E.3d 644 ; Matter of Quintana v. City of Buffalo, 114 A.D.3d 1222, 1223–1224, 979 N.Y.S.2d 760, lv. denied 23 N.Y.3d 902, 2014 WL 1775991 ; Matter of Clouse v. Allegany County, 46 A.D.3d 1381, 1381–1382, 849 N.Y.S.2d 372 ).
Although petitioner presented evidence suggesting that he was not able to work at all, the Hearing Officer instead credited other evidence that petitioner could perform a light-duty assignment. "The Hearing Officer was entitled to weigh the parties' conflicting medical evidence" (Clouse, 46 A.D.3d at 1382, 849 N.Y.S.2d 372 ), and " ‘[w]e may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists' " (id. , quoting Matter of CUNY–Hostos Community Coll. v. State Human Rights Appeal Bd., 59 N.Y.2d 69, 75, 463 N.Y.S.2d 173, 449 N.E.2d 1251 ; see Matter of Anderson v. City of Buffalo, 114 A.D.3d 1160, 1161, 979 N.Y.S.2d 731 ; Quintana, 114 A.D.3d at 1224, 979 N.Y.S.2d 760 ). Further, petitioner did not prove that any medication he was taking sedated him to the point of not being able to perform his duties in the camera room (see Quintana, 114 A.D.3d at 1225, 979 N.Y.S.2d 760 ).
Inasmuch as petitioner never claimed during the hearing that respondent failed to pay specific medical expenses, his contention in that regard is not properly before us (see Matter of Molinsky v. New York State Dept. of Motor Vehs., 105 A.D.3d 960, 960–961, 962 N.Y.S.2d 710 ). "It is well established that the scope of [a] CPLR article 78 proceeding, following an administrative hearing, is limited to review of the issues raised and addressed in that hearing" (Quintana, 114 A.D.3d at 1223, 979 N.Y.S.2d 760 [internal quotation marks omitted] ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.