IN RE: Bruce R. ZAMELSKY (2008)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated December 9, 2005, which denied the petitioner's application for disability retirement, the petitioner appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated December 18, 2006, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) determines whether a member is disabled (see Administrative Code of City of N.Y. § 13-167[b] ).  The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) is bound by the Medical Board's determination as to whether an applicant is disabled (see 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).   The Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational (id. at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899;  see Matter of Drew v. New York City Employees' Retirement Sys., 305 A.D.2d 408, 409, 758 N.Y.S.2d 500;  see Matter of Inguanta v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 302 A.D.2d 527, 756 N.Y.S.2d 245;  Matter of Barnett v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 264 A.D.2d 840, 695 N.Y.S.2d 604).

Here, the Medical Board performed three physical examinations of the petitioner.   The record demonstrates that the Medical Board considered all of the medical evidence submitted by the petitioner, including magnetic resonance imaging reports that had been interpreted by radiologists as showing that there was no change in the petitioner's pre-existing spinal condition as a result of a July 2000 accident.   Further, the Supreme Court properly determined that any medical records dated subsequent to the Medical Board's last review in 2005 could not be considered in reviewing the Medical Board's determination (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39, 724 N.Y.S.2d 680, 747 N.E.2d 1280).   Although the medical conclusions of some of the petitioner's treating physicians differed from those of the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board (see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899;  Matter of Tobin v. Steisel, 64 N.Y.2d 254, 258-259, 485 N.Y.S.2d 730, 475 N.E.2d 101;  Matter of Santoro v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 217 A.D.2d 660, 629 N.Y.S.2d 484).   Based upon the credible evidence before the Medical Board, its determination was not irrational (see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 149-150, 659 N.Y.S.2d 215, 681 N.E.2d 382;  Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 760, 650 N.Y.S.2d 614, 673 N.E.2d 899;  Matter of Marzigliano v. New York City Employees' Retirement Sys. [NYCERS ], 27 A.D.3d 748, 810 N.Y.S.2d 917;  Matter of Drew v. New York City Employees' Retirement Sys., 305 A.D.2d 408, 758 N.Y.S.2d 500;  Matter of Inguanta v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 302 A.D.2d 527, 756 N.Y.S.2d 245;  Matter of Barnett v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 264 A.D.2d at 841, 695 N.Y.S.2d 604).

The petitioner's remaining contention is without merit.