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Khurana v. Kelly

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 11, 2010

IN RE RAJIV KHURANA, PETITIONER-APPELLANT,
v.
RAYMOND KELLY, AS POLICE COMMISSIONER OF THE CITY OF NEW YORK, ETC., ET AL., RESPONDENTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered October 31, 2008, which denied petitioner police officer's application to annul respondents' determination denying petitioner an accident disability pension, and dismissed the petition, unanimously affirmed, without costs.

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.

Saxe, J.P., Friedman, Nardelli, Freedman, Abdus-Salaam, JJ.

104967/08

The Medical Board's finding that petitioner is not disabled for full duty is supported by "some credible evidence" (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760-761 [1996]), including MRI results indicating mild abnormality in the supraspinatus, but no tear, and the absence of any objective findings, such as atrophy. Petitioner's case was considered by the Medical Board on four separate occasions. On each occasion, the Medical Board reviewed all the medical evidence submitted by petitioner, including the results of MRIs, and conducted its own complete orthopedic examinations of the petitioner. Despite petitioner's continuing claim of limited range of motion in his left shoulder, the Medical Board found no evidence of a disabling condition. 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]). The courts may not "substitute their own judgment for that of the Medical Board" (Borenstein at 761 [internal quotation marks and citations omitted]).

We have considered petitioner's other arguments, including that the Medical Board "did not adequately explain why it resolved conflicts in the medical evidence the way it did, and find them unavailing" (see Schwartz v Kelly, 36 AD3d 563, 564 [2007]).

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

20100511

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