IN RE: Claudio DEMEO (2020)

Order and judgment (one paper), Supreme Court, New York County (Verna L. Saunders, J.), entered January 8, 2019, denying the petition to annul respondents' determination, dated May 25, 2017, which denied petitioner's application for accidental disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The determination to deny petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence (see Matter of Merlino v. Teachers' Retirement Sys. of the City of N.Y., 177 A.D.3d 430, 430, 113 N.Y.S.3d 76 [1st Dept. 2019], citing Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996]). The finding of respondent's Medical Board that petitioner was not disabled was supported by its physical examination and interview of petitioner (see Matter of Fusco v. Teachers' Retirement Sys. of the City of N.Y., 136 A.D.3d 450, 451, 24 N.Y.S.3d 291 [1st Dept. 2016]). Upon examination, petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. In addition, the Medical Board noted that petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints. Petitioner claims that the Medical Board ignored his medical history, but resolution of conflicting evidence was for the Medical Board to resolve (see Matter of Athanassiou v. Kelly, 101 A.D.3d 517, 954 N.Y.S.2d 880 [1st Dept. 2012]; Matter of Bell v. New York City Employees' Retirement Sys., 273 A.D.2d 119, 120, 710 N.Y.S.2d 888 [1st Dept. 2000], lv denied 96 N.Y.2d 701, 722 N.Y.S.2d 793, 745 N.E.2d 1015 [2001]).

The disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination (see Fusco, 136 A.D.3d at 451, 24 N.Y.S.3d 291, citing Matter of Barden v. New York City Employees' Retirement Sys., 291 A.D.2d 215, 216, 738 N.Y.S.2d 18 [1st Dept. 2002]). Nor did the finding of the medical arbitrator, who examined petitioner after the Medical Board made its determination, warrant article 78 relief (see id.).