Wawrzynek v. N.Y. State and Local Ret. Sys

Full title: IN THE MATTER OF WALTER WAWRZYNEK, Petitioner, v. NEW YORK STATE AND LOCAL…

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

Date published: Feb 7, 2002

291 A.D.2d 627 (N.Y. App. Div. 2002)

736 N.Y.S.2d 915

Opinion

90500

February 7, 2002.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's applications for disability retirement benefits and performance of duty disability retirement benefits.

Nicholas, Perot Strauss P.C. (Edward J. Dinki of counsel), Akron, for petitioner.

Eliot Spitzer, Attorney-General (William E. Storrs of counsel), Albany, for respondents.

Before: Mercure, J.P., Crew III, Spain, Carpinello and, Lahtinen, JJ.

MEMORANDUM AND JUDGMENT

Crew III, J.

Petitioner, a correction officer, filed applications for disability retirement benefits and performance of duty disability retirement benefits as the result of an injury to his back sustained during the course of his work. Based upon the medical evidence presented at a hearing, respondent Comptroller found that petitioner was not incapacitated for the performance of his duties and denied the applications. Petitioner commenced this CPLR article 78 proceeding to review the determination, claiming that the Comptroller's finding is not supported by substantial evidence.

Where, as here, the expert for respondent State and Local Retirement System provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinions (see,Matter of Harper v. McCall, 277 A.D.2d 589, 590). Accordingly, despite the contrary opinion expressed by petitioner's expert, and despite petitioner's criticisms of the opinions expressed by the Retirement System's expert, there is no basis upon which to disturb the Comptroller's finding that petitioner was not incapacitated for the performance of his duties (see, e.g., Matter of Daniels v. McCall, 285 A.D.2d 723, 724). The determination is, therefore, confirmed.

Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.