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In re Davenport

Supreme Court of New York, Second Department

October 30, 2013

In the Matter of Gregory Davenport, petitioner,
v.
City of Mount Vernon, et al., respondents. Index No. 15054/11

Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Sean Dooley of counsel), for petitioner.

Coughlin & Gerhart, LLP, Binghamton, N.Y. (Keith A. O'Hara of counsel), for respondents.

PETER B. SKELOS, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Fire Commissioner of the City of Mount Vernon dated June 3, 2011, which adopted the recommendation of a hearing officer dated May 31, 2011, made after a hearing, denying the petitioner's application for supplemental benefits pursuant to General Municipal Law § 207-a(2).

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner was employed by the City of Mount Vernon Fire Department (hereinafter the City). On December 5, 2003, he allegedly sustained an on-the-job injury. The petitioner was awarded salary benefits pursuant to General Municipal Law § 207-a(1) based on this incident. Thereafter, the petitioner applied for supplemental income benefits pursuant to General Municipal Law § 207-a(2). The City denied the application.

The petitioner appealed the denial of his application and requested a hearing. The hearing officer credited the testimony of the City's expert, Dr. Warren Silverman, who opined that the pain experienced by the petitioner in his neck was not caused by the work-related injury, and that the pain he experienced in his back might have been caused by the incident, but that, in any event, the petitioner was not fully disabled because Silverman believed the petitioner could still perform restricted duties. The City accepted the recommendation and upheld the determination denying benefits under General Municipal Law § 207-a(2). The petitioner commenced this proceeding pursuant to CPLR article 78 to review the City's denial of benefits.

Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176; Matter of Solano v City of Mount Vernon, 108 A.D.3d 676, 676-677). Here, the hearing officer's determination is supported by substantial evidence (see Matter of Ridge Rd. Fire Dist. v Schiano, 16 N.Y.3d 494, 499; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d at 180-181; Matter of Solano v City of Mount Vernon, 108 A.D.3d at 677; Matter of Refino v City of Mount Vernon, 104 A.D.3d 693; Matter of Davenport v City of Mount Vernon, 96 A.D.3d 838, 838-839). Contrary to the petitioner's assertions, the testimony of the respondents' expert was consistent and supported by the medical evidence, and the hearing officer was free to credit the testimony and report of that expert over any conflicting doctors' opinions contained in the petitioner's medical records (see Matter of Solano v City of Mount Vernon, 108 A.D.3d at 677; Matter of Refino v City of Mount Vernon, 104 A.D.3d at 693; Matter of Miserendino v City of Mount Vernon, 96 A.D.3d 946, 947; Matter of Davenport v City of Mount Vernon, 96 A.D.3d at 839).

The petitioner's remaining contentions are either without merit or based on matter dehors the administrative record.

SKELOS, J.P., COHEN, MILLER and HINDS-RADIX, JJ., concur.


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