Herbert v. New York State Comptroller

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 Comptroller which denied petitioner’s request for accidental disability retirement benefits.

There is substantial evidence in the record to support the conclusion by respondent Comptroller that petitioner failed to sustain his burden of proving that he was permanently incapacitated from performing his duties as a police officer. The record contains conflicting medical opinions which were for the Comptroller to evaluate and he was free to credit one physician’s testimony over that of another.

Cardona, P. J., Mercure, Casey, Weiss and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.