IN RE: Henry MAYO (1998)

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 Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner applied for accidental disability retirement benefits alleging that he was permanently disabled from the performance of his duties as a mental hygiene therapy aide as a result of two incidents occurring in July 1989 and September 1990.   Respondent Comptroller denied petitioner's application on the grounds that the July 1989 incident did not constitute an “accident” within the meaning of Retirement and Social Security Law § 63 and that petitioner failed to establish that he was permanently incapacitated from performing his duties.   Petitioner commenced this CPLR article 78 proceeding challenging this determination.

 We confirm.   Substantial evidence supports the Comptroller's finding that petitioner is not entitled to benefits.   The record demonstrates that the July 1989 incident occurred when petitioner had lifted a patient from a van in the ordinary performance of his duties and, therefore, the injury sustained does not constitute an accident (see, Matter of Landestoy v. Regan, 207 A.D.2d 572, 615 N.Y.S.2d 491).   As to whether petitioner was permanently incapacitated, the orthopedic surgeon who evaluated petitioner on behalf of respondent State and Local Employees' Retirement System characterized petitioner's restriction of motion as voluntary and inconsistent throughout the course of the examination.   It was this expert's opinion that the X ray and MRIs that he reviewed indicated a degenerative change reflecting nothing more than normal aging and concluded that petitioner was physically able to perform his job duties.   The contrary testimony of petitioner's medical expert presented a credibility issue for resolution by the Comptroller (see, Matter of Nicholson v. McCall, 250 A.D.2d 994, 995, 672 N.Y.S.2d 966, 967;  Matter of Dubois v. McCall, 239 A.D.2d 774, 775, 657 N.Y.S.2d 798).  We have considered petitioner's remaining contentions and find them to be unavailing.   Accordingly, we find no reason to disturb the Comptroller's determination.

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

MEMORANDUM DECISION.