Matter of Mikes v Kelly

Matter of Mikes v Kelly 2012 NY Slip Op 03950 Decided on May 22, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 22, 2012
Tom, J.P., Sweeny, Renwick, Freedman, Abdus-Salaam, JJ.
7721 115491/09

[*1]In re Stephen Mikes, Petitioner-Appellant,

v

Raymond Kelly, etc., et al., Respondents-Respondents.




Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Inga
Van Eysden of counsel), for respondents.

Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 14, 2010, denying the petition and dismissing the proceeding brought pursuant to CPLR article 78, which sought to annul respondents' determination denying petitioner's application for accident disability retirement (ADR) benefits, unanimously affirmed, without costs.

Credible evidence supported the conclusion that petitioner's injuries did not warrant a 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 [1997]). The Medical Board, upon repeated reviews of the relevant medical evidence and multiple examinations of petitioner, concluded that petitioner's complaints were not consistent with its objective physical findings, or were the result of degenerative conditions, not the result of a line-of-duty incident. The Board of Trustees was entitled to rely on the Medical Board's findings (see Matter of Appleby v Herkommer, 165 AD2d 727 [1990]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 22, 2012

CLERK