IN RE THEOPHILOS ATHANASSIOU, pet-ap, v. RAYMOND KELLY, ETC. res-res
- SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
- Dec 13 2012 (Date Decided)
- Tom, J.P., Sweeny, Moskowitz, Renwick, Clark, JJ.
8811. IN RE THEOPHILOS ATHANASSIOU, pet-ap, v. RAYMOND KELLY, ETC. res-res — David Jalosky, New York, for ap — Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for res — Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered August 2, 2011, denying the petition to annul respondents' determination which denied petitioner's application for accident disability retirement (ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Credible evidence supported the conclusion that petitioner's injuries did not warrant the grant of ADR benefits (see generally Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145 ). Petitioner's application and evidence submitted in support were repeatedly reviewed and evaluated by the Medical Board, which ultimately found that petitioner's credibility was called into question by his failure to file a claim for several years after the event that allegedly caused his hearing loss, and by the fluctuations in his hearing test results. Resolution of the conflicting opinions of the medical experts was for the Medical Board to resolve (see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 NY2d 756, 761 ; Matter of Whitton v. Spinnato, 143 AD2d 274, 275 [2d Dept 1988]).
This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.