Matter of Russell Goffred v Raymond Kelly

Matter of Goffred v Kelly 2004 NY Slip Op 08966 [13 AD3d 72] December 2, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

In the Matter of Russell Goffred, Appellant,
v
Raymond Kelly, as Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.

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Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered August 13, 2003, which denied the petition brought pursuant to CPLR article 78 seeking to annul respondents' determination denying petitioner an accident disability retirement pension, unanimously affirmed, without costs.

The Medical Board's finding that petitioner is not disabled from performing full police duty is supported by credible evidence, and thus, may not be disturbed (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760-761 [1996]). Petitioner's case was considered by the Medical Board on six separate occasions. On each occasion, the Medical Board reviewed all the medical evidence submitted by petitioner, including the results of MRIs and EMGs, and conducted its own complete orthopedic examinations of the petitioner. Despite petitioner's continuing claims of debilitating pain in his neck, shoulders, arms and legs, the Medical Board found no evidence of a disabling disease of the cervical and lumbar spine. The Medical Board was entitled to rely upon its own physical examinations which provided credible evidence for its determination and, accordingly, was not bound by the contrary opinions of petitioner's experts (see Matter of Mulheren v Board of Trustees of Police Pension Fund, Art. II, 307 AD2d 129, 131 [2003], lv denied 100 NY2d 515 [2003]). Concur—Tom, J.P., Andrias, Saxe, Williams, Sweeny, JJ.