IN RE: Robert CRILL (2006)

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 which denied petitioner's application for performance of duty disability retirement benefits.

Petitioner, a correction officer at Mohawk Correctional Facility in Oneida County, sustained an injury to his right knee in January 1998 when he attempted to subdue a combative inmate.   His subsequent application for performance of duty disability retirement benefits was denied on the basis that he was not permanently incapacitated from performing his employment duties.   This CPLR article 78 proceeding ensued and we now confirm.

 In order to receive performance of duty disability retirement benefits, it was incumbent upon petitioner to demonstrate that he is permanently incapacitated from performing his job duties as a correction officer (see Matter of Riguzzi v. Hevesi, 16 A.D.3d 822, 823, 790 N.Y.S.2d 583 [2005];  Matter of Johnson v. Hevesi, 10 A.D.3d 835, 836, 782 N.Y.S.2d 141 [2004] ).   In an attempt to satisfy that burden, petitioner presented evidence from his treating physicians, who opined, among other things, that he suffered from derangement and recurring buckling of his right knee, which conditions constituted a permanent disability preventing him from performing his usual job duties.   However, an orthopedist who examined petitioner and reviewed his medical history at the request of the New York State and Local Retirement System testified to the contrary, opining that there were no objective findings indicating that petitioner suffered from any disability of his knee which permanently incapacitated him from working as a correction officer.   Noting that respondent possessed the authority to resolve such conflicts in the medical evidence and credit the opinion of the Retirement System's expert over the opinions offered by petitioner's experts (see Matter of Hoehn v. Hevesi, 14 A.D.3d 761, 762, 787 N.Y.S.2d 496 [2005], lv. denied 4 N.Y.3d 708, 797 N.Y.S.2d 420, 830 N.E.2d 319 [2005];  Matter of Davenport v. McCall, 5 A.D.3d 850, 851, 772 N.Y.S.2d 754 [2004] ), we find that there is substantial evidence in the record supporting respondent's determination.   Accordingly, we decline to intervene.   Petitioner's remaining contentions, to the extent not specifically referenced herein, have been considered and found to be without merit.

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

KANE, J.

MERCURE, J.P., PETERS, SPAIN and ROSE, JJ., concur.