IN RE: Kenneth RODRIGUEZ (2004)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Kenneth RODRIGUEZ, Petitioner-Appellant, v. Raymond KELLY, Police Commissioner of the City of New York, etc., et al., Respondents-Respondents.

Decided: June 10, 2004

BUCKLEY, P.J., LERNER, FRIEDMAN, MARLOW, SWEENY, JJ.

Jeffrey L. Goldberg, Lake Success, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Stephen J. McGrath of counsel), for respondents.

Judgment, Supreme Court, New York County (Robert D. Lippmann, J.), entered April 3, 2003, which denied the petition brought pursuant to CPLR article 78 challenging rejection of applications for accident or ordinary disability retirement benefits, unanimously affirmed, without costs.

The Medical Board's determination that petitioner's hearing loss was not substantial enough to disable him from performing the full duties of a New York City police officer was based on reviews of credible evidence in the form of medical reports and tests, and thus was neither arbitrary nor capricious (Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 650 N.Y.S.2d 614, 673 N.E.2d 899).

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