SCHWARTZ v. KELLY

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Supreme Court, Appellate Division, First Department, New York.

John R. SCHWARTZ, Petitioner-Appellant, v. Raymond KELLY, as Police Commissioner of the City of New York, etc., et al., Respondents-Respondents.

Decided: January 30, 2007

SAXE, J.P., MARLOW, SULLIVAN, NARDELLI, GONZALEZ, JJ. Sweeney Cohn Stahl Spector & Frank, White Plains (Julius W. Cohn of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered August 10, 2005, which denied petitioner police officer's application to annul respondents' determination denying petitioner an accident disability pension, and dismissed the petition, unanimously affirmed, without costs.

The Medical Board's finding that petitioner is not disabled for full duty is supported by “some credible evidence” (see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760-761, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ), including its own physical examinations of petitioner, the negative results of the most recent EMG, the essentially negative results of the most recent MRI of the left knee, and the most recent MRI of the right shoulder showing only mild tendinosis.   The errors in some of the Medical Board's reports pointed out by petitioner are typographical in nature or otherwise too minor to have materially affected the determination.   We have considered petitioner's other arguments, including that the Medical Board disregarded or did not give appropriate weight to his protracted periods of restricted duty, and did not adequately explain why it resolved conflicts in the medical evidence the way it did, and find them unavailing.