Refinov.City of Mount Vernon

Supreme Court, Appellate Division, Second Department, New York.Mar 6, 2013
959 N.Y.S.2d 924 (N.Y. App. Div. 2013)
959 N.Y.S.2d 924104 A.D.3d 6932013 N.Y. Slip Op. 1411

2013-03-6

In the Matter of John REFINO, petitioner, v. CITY OF MOUNT VERNON, et al., respondents.

Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Patricia D'Alvia of counsel), for petitioner. Coughlin & Gerhart, LLP, Endicott, N.Y. (Lars P. Mead of counsel), for respondents.


Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Patricia D'Alvia of counsel), for petitioner. Coughlin & Gerhart, LLP, Endicott, N.Y. (Lars P. Mead of counsel), for respondents.


*925Proceeding pursuant to CPLR article 78 to review a determination of the Fire Commissioner of the City of Mount Vernon Fire Department dated October 20, 2010, which adopted the recommendation of a hearing officer dated October 4, 2010, made after a hearing, denying the petitioner's application for 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 hearing officer's determination that the petitioner did not suffer from a work-related injury is supported by substantial evidence ( see Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140;300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183;Matter of Collins v. Codd, 38 N.Y.2d 269, 270, 379 N.Y.S.2d 733, 342 N.E.2d 524;Matter of Davenport v. City of Mount Vernon, 96 A.D.3d 838, 946 N.Y.S.2d 214). 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 that expert's testimony over the testimony of the petitioner's treating physicians ( see Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d 946, 946 N.Y.S.2d 640;Texter v. Middletown Dialysis Ctr., Inc., 22 A.D.3d 831, 803 N.Y.S.2d 687;Matter of Bernhard v. Hartsdale Fire Dist., 226 A.D.2d 715, 641 N.Y.S.2d 868).

The petitioner's remaining contentions are without merit.

MASTRO, J.P., LOTT, ROMAN and COHEN, JJ., concur.