IN RE: Barbara J. JONES

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

IN RE: Barbara J. JONES, Petitioner, v. H. Carl McCALL, as Comptroller of the State of New York, Respondent.

Decided: April 27, 2000

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and MUGGLIN, JJ. Michael A. Rosenhouse, Rochester, for petitioner. Eliot Spitzer, Attorney-General (Francis V. Dow of counsel), Albany, for respondent.

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 ordinary disability retirement benefits.

Petitioner, a food service worker, filed an application for ordinary disability retirement benefits alleging that she was permanently incapacitated from her employment as the result of a stroke.   Following a hearing, at which various medical records and reports were received into evidence, respondent denied petitioner's application, finding that she had failed to demonstrate that she indeed was permanently incapacitated from the performance of her duties.   Petitioner thereafter commenced this proceeding pursuant to CPLR article 78, which was subsequently transferred to this court, to challenge respondent's determination.

 Based upon our review of the record as a whole, we cannot say that respondent's determination is not supported by substantial evidence.   The neurologist who examined petitioner on behalf of the State and Local Employees' Retirement System stated that neither his physical examination of petitioner nor his review of her medical records revealed significant objective evidence of any neurological dysfunction that could be considered permanent or disabling in nature.   To the extent that petitioner's treating physicians expressed a contrary view, it was within respondent's authority to evaluate the conflicting medical evidence and to credit one expert's opinion over that of another (see, Matter of Mallory v. New York State & Local Employees Retirement Sys., 261 A.D.2d 775, 689 N.Y.S.2d 788).   Petitioner's remaining contentions, including her assertion that the Hearing Officer's failure to consider a particular medical report and/or the determination awarding her Social Security benefits warrants annulment of respondent's determination, have been examined and found to be lacking in merit.

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



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