IN RE: Robert DEZENDORF (1997)

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

IN RE: Robert DEZENDORF, Petitioner-Appellant, For a Judgment, etc., v. William BRATTON, etc., et al., Respondents-Respondents.

Decided: December 11, 1997

Before ELLERIN, J.P., and WALLACH, WILLIAMS, ANDRIAS and COLABELLA, JJ.

Raymond J. Aab, for Petitioner-Appellant. Cheryl Payer, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered November 12, 1996, which denied petitioner's application, brought pursuant to CPLR article 78, challenging respondents' determination denying him line-of-duty accident disability retirement benefits, and dismissed the petition, unanimously affirmed, without costs.

The record supports respondents' determination to deny petitioner's retirement application. While a magnetic resonance imaging test conducted on petitioner's spine revealed the existence of “a small mid line disc herniation” at L4-5, there was also found to be no “involvement of the dural tube [or] ․ encroachment at the foramina”. The Medical Board examined petitioner, at his request, on five occasions and found no tenderness to palpitation over the lumbosacral paraspinal area, active and symmetrical deep tendon reflexes, no evidence of thigh or calf muscle atrophy, and no complaints of pain with knee flexion in the supine position. In addition, petitioner complained of pain when certain motion tests were performed, but not when others were performed that should have elicited the same complaints.

We have considered petitioner's other contentions and find them to be without merit.

MEMORANDUM DECISION.

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