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In Re Theophilos Athanassiou v. Raymond Kelly

New York Supreme and/or Appellate Courts Appellate Division, First Department


December 13, 2012

IN RE THEOPHILOS ATHANASSIOU,
PETITIONER-APPELLANT,
v.
RAYMOND KELLY, ETC., ET AL.,
RESPONDENTS-RESPONDENTS.

Matter of Athanassiou v Kelly

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 December 13, 2012

Tom, J.P., Sweeny, Moskowitz, Renwick, Clark, JJ.

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 [1997]). 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 [1996]; 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.

ENTERED: DECEMBER 13, 2012

CLERK

20121213

© 1992-2012 VersusLaw Inc.



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