IN RE: Joseph VAN HOUTEN (2005)

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 worked as a motor equipment operator for approximately 27 years.   On December 13, 2000, petitioner was injured when the road under the dump truck he was operating collapsed.   His application for accidental disability retirement benefits was denied following a hearing on the basis that he was not permanently incapacitated from performing his duties (see Retirement and Social Security Law § 63).   This CPLR article 78 proceeding ensued.

We confirm.   The expert for respondent New York State and Local Employees' Retirement System testified that his examination of petitioner and his review of petitioner's MRI and EMG test results failed to discover objective medical evidence to support a conclusion that petitioner was permanently incapacitated from performing his duties as a motor equipment operator.   Although petitioner's treating physician presented a contrary medical opinion, respondent Comptroller was free to credit the opinion of the Retirement System's expert over that of petitioner's physician (see Matter of Stern v. Hevesi, 12 A.D.3d 831, 832, 783 N.Y.S.2d 889 [2004];  Matter of Johnson v. Hevesi, 10 A.D.3d 835, 836, 782 N.Y.S.2d 141 [2004] ).   Thus, as the determination is supported by substantial evidence in the record, it will not be disturbed (see Matter of Stern v. Hevesi, supra at 831-832, 783 N.Y.S.2d 889;  Matter of De Carolis v. McCall, 272 A.D.2d 824, 824-825, 708 N.Y.S.2d 192 [2000] ).

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