Matter of Athanassiou v Kelly
2012 NY Slip Op 08660 [101 AD3d 517]
December 13, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 6, 2013


In the Matter of Theophilos Athanassiou, 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.

[*1] David Jalosky, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for respondents.

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]). Concur—Tom, J.P., Sweeny, Moskowitz, Renwick and Clark, JJ. [Prior Case History: 32 Misc 3d 1221(A), 2011 NY Slip Op 51384(U).]