In the Matter of Michael T. Flynn, Petitioner, v. H. Carl McCall, as Comptroller of the State of New York, Respondent

In the Matter of Michael T. Flynn, Petitioner, v H. Carl McCall, as Comptroller of the State of New York, Respondent. [659 NYS2d 806] [MAJORITY] 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 request for performance of duty disability retirement benefits. Petitioner applied for performance of duty disability retirement benefits after sustaining injuries to his back on two separate occasions while performing his duties as a police officer. His application was denied on the ground that he failed to prove that he was permanently incapacitated from performing his duties. The orthopedic expert presented on behalf of the New York State and Local Police and Fire Retirement System testified that his examination of petitioner revealed no objective medical evidence to indicate that petitioner was permanently disabled. Although petitioner’s medical expert testified to the contrary, it is within respondent’s authority to evaluate and resolve conflicting medical testimony (see, Matter of Zolzer v New York State Comptroller, N Y. State & Local Employees’ Retirement Sys. & Police & Fire Retirement Sys., 196 AD2d 934, 935). Accordingly, we find no reason to disturb the determination. Mikoll, J. P., Mercure, Casey, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.