Roth v. Board of Trustees

Order, Supreme Court, New York County, entered April 7, 1978, granting reargument and adhering to the original decision, is unanimously modified, on the law, and in the exercise of discretion, to the extent that the judgment herein, entered January 13, 1978, is vacated, and the matter is remanded to the medical board of the Teachers' Retirement System of the City of New York for reconsideration in the light of the available evidence, including the report of Dr. Jack Levine, dated January 7, 1977, and the order is otherwise affirmed, without costs and without disbursements. In view of the foregoing determination, the appeal from the judgment of the Supreme Court, New York County, entered January 13, 1978, is dismissed, as academic. A mere *665conflict of opinion among physicians is not a ground for upsetting a determination of the medical board when there is credible evidence to support that determination. (Matter of Manza v Malcolm, 44 AD2d 794; Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., 37 AD2d 378, 380, affd 32 NY2d 852.) But in the present case the record is somewhat ambiguous as to whether the medical board of the Teachers’ Retirement System had before it and considered the report of Dr. Jack Levine dated January 7, 1977, submitted to the medical board of the Board of Education at the latter’s request. In the interest of making sure that no injustice has been done and no relevant evidence overlooked, we remand the matter to the medical board of the Teachers’ Retirement System to consider the available medical evidence, including Dr. Jack Levine’s report. Concur—Kupferman, J. P., Silverman, Fein, Yesawich and Sandler, JJ.