IN RE: Patricia GLYNN (2001)

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

 Petitioner commenced this CPLR article 78 proceeding to challenge the Comptroller's determination which denied her application for accidental disability retirement benefits based upon cervical and lumbar injuries sustained as a result of incidents at work as a budget coordinator for the City of New Rochelle, Westchester County.   Although petitioner's treating physician testified that petitioner was permanently disabled, respondent's orthopedic expert testified that his review of the relevant medical records and reports, including the results of MRI studies, and his examination of petitioner revealed no objective evidence of any orthopedic or neurologic condition that would explain her subjective complaints.   He also noted that the absence of any muscle atrophy was inconsistent with the weakness exhibited by petitioner during the examination.   The expert concluded that although petitioner had osteoarthritis and a small herniated disc, she was not permanently incapacitated for the performance of her duties as a budget coordinator.

 Where, as here, respondent's expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinion (see, Matter of Harper v. McCall, 277 A.D.2d 589, 715 N.Y.S.2d 494).   Petitioner's criticisms of the expert's opinion are based on the type of alleged deficiencies that presented a question of credibility for the Comptroller to resolve (compare, id., with Matter of Nopper v. McCall, 222 A.D.2d 884, 635 N.Y.S.2d 723;  see, Matter of Silverhardt v. State of New York, 269 A.D.2d 652, 703 N.Y.S.2d 555).   Our review of the record discloses no reason to disturb the Comptroller's determination and, therefore, it must be confirmed.

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

ROSE, J.

CREW III, J.P., PETERS, MUGGLIN and LAHTINEN, JJ., concur.