| Matter of Clouse v Allegany County |
| 2007 NY Slip Op 10240 [46 AD3d 1381] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of John Clouse, Petitioner, v Allegany County,Respondent. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Robert R. Jones of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, AlleganyCounty [Michael F. Griffith, A.J.], entered May 30, 2007) to annul a determination ofrespondent. The determination, inter alia, discontinued benefits petitioner was receiving pursuantto General Municipal Law § 207-c.
It is hereby ordered that the determination be and the same hereby is unanimously confirmedwithout costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul theHearing Officer's determination that he was able to return to work as ordered by respondent onApril 8, 2005. Petitioner had been receiving benefits pursuant to General Municipal Law §207-c as a result of injuries that he received in the course of his work as a correction officer. Weagree with petitioner that the Hearing Officer erred in considering whether petitioner's backinjuries were causally related to the work incident because petitioner did not receive notice thatcausation would be at issue (see Matter of Fitzgerald v Libous, 44 NY2d 660 [1978];Matter of Rivera v Rozzi, 149 AD2d 514, 516 [1989]). Nevertheless, that error is harmlessbecause the determination of the Hearing Officer was based upon a finding that petitioner wasnot disabled from performing his job as of April 8, 2005. Although petitioner presented evidenceestablishing that he was unable to return to work as ordered, we conclude that the HearingOfficer's determination to the contrary is supported by substantial evidence (see generally 300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). TheHearing Officer was entitled to weigh the parties' conflicting medical evidence and to assess thecredibility of the witnesses, and "[w]e may not weigh the evidence or reject [the HearingOfficer's] choice where the evidence is conflicting and room for a choice exists" (Matter ofCUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75 [1983];see Matter of Morsman v County ofAllegany, 26 AD3d 890 [2006]).
In view of our determination, we need not reach respondent's contention that the petition istime-barred. Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Pine, JJ.