| Matter of Solano v City of Mount Vernon |
| 2013 NY Slip Op 05322 [108 AD3d 676] |
| July 17, 2013 |
| Appellate Division, Second Department |
| In the Matter of Dennis Solano, Petitioner, v Cityof Mount Vernon et al., Respondents. |
—[*1] Coughlin & Gerhart, LLP, Binghamton, N.Y. (Keith O'Hara of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 to review a determination of the FireCommissioner of the City of Mount Vernon Fire Department dated January 13, 2011,which adopted the recommendation of a hearing officer dated January 7, 2011, madeafter a hearing, denying the petitioner's application for benefits pursuant to GeneralMunicipal Law § 207-a (2).
Adjudged that the determination is confirmed, the petition is denied, and theproceeding is dismissed on the merits, with costs.
The petitioner was employed by the City of Mount Vernon Fire Department(hereinafter the City). In August 2002, he suffered an on-the-job injury to his lower back.While he was disabled, the petitioner received his regular salary pursuant to GeneralMunicipal Law § 207-a (1). He also sought and received retirement disabilitybenefits from the State of New York pursuant to Retirement and Social Security Law§ 363-c, and Social Security disability benefits from the Social SecurityAdministration. The petitioner then applied for supplemental benefits pursuant toGeneral Municipal Law § 207-a (2). The City denied the application on the basisthat the petitioner was no longer permanently disabled.
The petitioner appealed the denial of his application and requested a hearing. Thehearing officer credited the testimony of the City's expert, Dr. Warren Silverman, andrecommended denial of benefits because the petitioner was no longer disabled. The Cityaccepted the recommendation and upheld the determination denying benefits underGeneral Municipal Law § 207-a (2). The petitioner commenced this proceedingpursuant to CPLR article 78 to review the City's denial of benefits.
Judicial review of an administrative determination made after a hearing required bylaw at which evidence is taken is limited to whether the determination is supported bysubstantial evidence (see CPLR 7803 [4]; 300 Gramatan Ave. Assoc. v StateDiv. of Human Rights, 45 NY2d 176 [1978]; Matter of Cardenas v Board ofEduc. of Yonkers City School Dist., 298 AD2d 390 [2002]). Substantial evidencemeans more than a "mere scintilla of evidence," and the test of whether substantial [*2]evidence exists in a record is one of rationality, taking intoaccount all the evidence on both sides (Matter of Stork Rest. v Boland, 282 NY256, 273-274 [1940]).
When there is conflicting evidence or different inferences may be drawn, "the duty ofweighing the evidence and making the choice rests solely upon the [administrativeagency]. The courts may not weigh the evidence or reject the choice made by [suchagency] where the evidence is conflicting and room for choice exists" (Matter ofBerenhaus v Ward, 70 NY2d 436, 443-444 [1987] [internal quotation marksomitted]; see Matter ofMiserendino v City of Mount Vernon, 96 AD3d 946, 947 [2012]; Matter of Hildreth v New YorkState Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]). Moreover,where there is conflicting expert testimony, in making a General Municipal Law §207-a determination, a municipality is "free to credit one physician's testimony over thatof another" (Matter of Bernhard v Hartsdale Fire Dist., 226 AD2d 715, 716[1996]; see Matter of Segura v City of Long Beach, 230 AD2d 799 [1996]).Thus, even if "conflicting medical evidence can be found in the record," themunicipality's determination, based on its own expert's conclusions, may still besupported by substantial evidence (Matter of Bernhard v Hartsdale Fire Dist.,226 AD2d at 717).
Here, the hearing officer's determination is supported by substantial evidence. Thepetitioner first contends that Dr. Silverman was not qualified to give an opinion.However, we have held that, "[o]nce a medical expert establishes his or her knowledgeof the relevant standards of care, he or she need not be a specialist in the particular areaat issue to offer an opinion" (Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831, 831[2005]). Here, upon stipulation, Dr. Silverman was qualified as a medical expert. Thus,he need not have been a specialist to offer an opinion as to the petitioner's condition.Moreover, contrary to the petitioner's arguments, Dr. Silverman's testimony wasconsistent and supported by the medical evidence. The hearing officer was free to creditDr. Silverman's testimony more than the testimony of the petitioner's treating physicianand chiropractor (see id.; Matter of Bernhard v Hartsdale Fire Dist., 226AD2d at 716-717).
Additionally, to the extent the petitioner asserts that he did not receive a fair hearingbecause Dr. Silverman was biased, the argument was not presented to the hearing officerand is "precluded from judicial review" (Matter of Kearney v Village of Cold Spring Zoning Bd. ofAppeals, 83 AD3d 711, 713 [2011]; see Matter of Klapak v Blum, 65NY2d 670, 672 [1985]; Matterof Emrey Props., Inc. v Baranello, 76 AD3d 1064, 1067 [2010]; Matter ofTrident Realty v Planning Bd. of Inc. Vil. of E. Hampton, Suffolk County, 248AD2d 545 [1998]). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.