The following papers numbered 1 to5 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations)5

Affidavit (Affirmation)

Other Papers Memorandum of Law4

Upon the foregoing papers in this CPLR article 78 proceeding, petitioner Maria C. Zamora, seeks a judgment reviewing and annulling the February10, 2012 determination of respondent New York City Employee's Retirement System (NYCERS) denying her application for disability retirement; directing NYCERS to retire petitioner with a [*2]disability retirement retroactive to her date of retirement affixing together with interest thereon; or in the alternative; directing a trial of the factual and/or medical issues involved herein pursuant to CPLR 7804 (h), or in the alternative; directing the Board of Trustees to allow petitioner and/or her representatives to present such testimony as is necessary at a hearing before the Board of trustees in order to prove her entitlement to a disability retirement. Additionally, pursuant to CPLR 2807 (a) petitioner seeks an order directing respondents to serve and file; (i) all reports, recommendations, certificates and other papers and documents submitted to the Board in connection with the application of petitioner herein; (ii) copies of the minutes of each meeting of the Medical Board wherein the Board took any action on petitioner's pension application or made any recommendation or report to the Board of Trustees upon petitioner's application; (iii) copies of any and all medical reports or notes relating to petitioner which are on file with NYCERS.

On September 30, 1985, petitioner began her employment with the New York City Health and Hospitals Corporation as a staff nurse. On October 13, 2008, petitioner injured her right hip and right knee while assisting a patient when he lost his balance and, in the process of trying to prevent him from falling, twisted her right knee and hip.

On September 27, 2010, petitioner filed an application for disability retirement with NYCERS. In her application she listed injuries to her right knee, right hip and lower back that occurred on October 1, 2008, which was the date that she stopped working. The NYCERS Medical Board interviewed and examined plaintiff on February 4, 2011. Additionally, the Medical Board reviewed the following documents: a Physician's Report of Disability dated August 9, 2010; an MRI report dated October 16, 2008 related to petitioner's right knee; various other MRI reports concerning her right hip, lumbosacral spine, thoracic spine , cervical spine, right shoulder; and MRI report dated June 21, 2010, regarding petitioner's lumbosacral spine; notes from the Elmhurst Hospital Emergency Room dated October 13, 2008; an MRI report dated February 10, 2009, regarding petitioner's right knee; operative notes from the Hospital for Special Surgery dated May 20, 2009; a medical report dated October 27, 2009 from an orthopedic surgeon Nathaniel Tinel, M.D. and a medical report from an independent medical examination performed by orthopedic surgeon Dr. Joseph Paul.

Following the interview, medical examination and review of all the documents submitted, the Medical Board found that the documentary and clinical evidence did not substantiate that petitioner was disabled from performing the duties of a Registered Nurse at Elmhurst Hospital. Accordingly, the Board recommended that petitioner's application for disability retirement be denied. By letter dated April 15, 2011, petitioner was informed that the NYCER's Board of Trustees adopted the Medical Board's recommendation denying petitioner's September 27, 2010 application for disability retirement.

On or about May 10, 2011, petitioner filed a second application for disability retirement with NYCERS alleging virtually the same injuries. On August 25,2011, the Medical Board again interviewed and examined petitioner. In addition, the Board reviewed the following documents: a Physician's Report from Dr. Sylvester Lango, dated April 20, 2011; a Physician's Report dated June 15, 2011, from Dr. Clara Rivera; a report dated July 20, 2011 of Dr. Naveen Goyal; a report of Dr. Hryhorowych dated August 27, 2010; an MRI of the right knee dated April 4, 2011; an MRI of the right hip dated April 8, 2011; an MRI of the right shoulder dated August 5, 2010; an MRI of the cervical spine dated May 11, 2010; [*3]an MRI of the lumbrosacral spine dated April 15, 2011; an EMG report of June 28, 2011 showing bilateral carpal tunnel syndrome; and an EMG diagnosing chronic lumbosacral radiculopathy involving the L5-S1 nerve root.

In discussing its examination of petitioner, the Medical Board stated that it found that her gait appeared to be normal and that she was able to walk on her toes and on her heels. The examination revealed full range of motion of her shoulders; neck, hips, knees, ankles and feet. In addition, manual muscle testing in the upper and lower extremities was normal and her deep tendon reflexes were depressed but symmetrical. The Board also noted that the examination of the hip revealed professed tenderness in the posterior gluteal area, but that no spasm was present and that the examination of the knee revealed full range of motion bilaterally without crepitus or effusion.

Following the interview, examination, and review of the medical reports the NYCERS' Medical Board again found that the documentary and clinical evidence failed to demonstrate that "Maria Zamora is disabled from performing the duties of Registered Nurse with the Elmhurst General Hospital. Therefore, the Medical Board again recommends that Maria Zamora's application for Disability Retirement under the provisions of Section 605 be denied." Petitioner received a letter informing her of the Medical Board's decision which was dated September 6, 2011. By letter dated October 12, 2011, David Jalosky, Esq., petitioner's attorney requested the opportunity to submit additional documents before the Board of Trustees rendered its decision. By letter dated November 14, 2011, Mr. Jalosky submitted documents from Wyckoff Medical Center regarding surgeries performed on petitioner on April 1, 2011 and September 30, 2011. By letter dated November 22, 2011, petitioner was informed that the additional medical evidence submitted had been considered but that the Medical Board had determined it did not warrant further consideration. However, petitioner was informed she had until December 22, 2011, to submit any additional medical evidence to support her disability claim.

In response, petitioner's attorney submitted some additional medical records for Medical Board review. The Medical Board once again determined that these records did not support petitioner's application for disability retirement. By letter dated, February 10, 2012, petitioner was informed that the NYCERS' Board of Trustees had adopted the recommendation of the Medical Board denying petitioner's May 10, 2011 application for disability retirement. Subsequently petitioner filed the instant Article 78 proceeding requesting the court to reverse respondent's determination on the grounds that it was arbitrary and capricious and against the substantial weight of the documentary evidence.

Petitioner contends that the Medical Board's determination was arbitrary, capricious and unlawful, in that they have ignored medical and circumstantial evidence indicating that petitioner is disabled. She argues that she has submitted thorough and extensive objective medical evidence illustrating her inability to perform her duties as a registered nurse. In support of her application, she submits numerous medical reports spanning from 2008 through 2011. These include various MRI and EMG reports including the December 6, 2010 report of Dr. Hryhorowych in which after reviewing MRIs he opined that petitioner was suffering from right knee arthropathy; right hip trichinae bursitis/tendonitis, right hip lateral tear, severe bilateral knee injuries. Petitioner points out that on or about February 15, 2011, she was examined by an Independent Medical Examiner, Joseph L. Paul M.D., who concluded that petitioner remained with a moderate disability and could perform all of her [*4]usual daily activities with the limitation and restriction of no lifting, pushing and pulling over 10 pounds.

Respondents contend that the Medical Board not only considered all of the medicalevidence presented by petitioner but also conducted several of its own examinations of plaintiff during her two separate applications for disability retirement. Respondents point out that during the physical examination of petitioner her gait appeared normal and she was able to walk on her toes and heels. The examination revealed that she had a full range of motion in her shoulders, neck, hips, ankles, knees and feet. There was no effusion or crepitus present in her knees and manual muscle testing in her upper and lower extremities was normal. The Medical Board's examination of her hip revealed tenderness in the posterior gluteal area, but no spasm and free mobility. The Board found that her deep tendon reflexes were depressed but symmetrical. Respondents maintain that based upon the Medical Board's own examination of petitioner, and its review of the documentary evidence, the Board found that petitioner failed to demonstrate that she was disabled from performing her duties as a registered nurse. Accordingly, respondents argue that based on the evidence before it the Board properly recommenced denial of petitioner's application for disability retirement.

Petitioner nowmoves for a judgment, pursuant to CPLR Article 78, seeking to reverse respondent's denial of her application for disability retirement. It is axiomatic that in an Article 78 proceeding the court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see e.g. Pell v Bd. of Educ., 34 NY2d 222, 230-231 [1974]). Thus, in an Article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary and capricious (Matter of Borenstein v New York City Empls. Retirement Sys., 88 NY2d 756, 760 [1996]; see also Matter of Canfora v Board of Trustees, 60 NY2d 347, 351 [1983]; Matter of Pell v Board of Educ., 34 NY2d 222, 230-231 [1974]). If the Medical Board's determination is reasonably based in the record, it will not be considered to lack a rational basis or to be arbitrary or capricious (Matter of Borenstein, 88 NY2d at 760). In the context of a Medical Board determination, such finding will be sustained if there is some credible evidence that supports the Medical Board's determination (id.; see also Matter of Kuczinski v Board of Trustees of New York City Fire Dept., Art.1-B Pension Fund, 8 AD3d 283, 284 [2004]). If the evidence reviewed by the Medical Board is subject to conflicting interpretations, the Medical Board alone has the authority to resolve the conflict (Matter of Borenstein, 88 NY2d at 761; Matter of Mininni v New York City Employees' Retirement Sys., 279 AD2d 428, 429 [2001], lv denied 96 NY2d 722 [2001]; Matter of Martucci v New York City Employees' Retirement Sys., 248 AD2d 240 [1998]). A court may not substitute its own judgment for that of the Medical Board (Matter of Borenstein, 88 NY2d at 761; see also Matter of Schwarzrock v Board of Trustees of the New York City Fire Dept., 238 AD2d 596, 597 [1997], lv denied 91 NY2d 803 [1997]).

Here, the Medical Board issued a report to the Board of Trustees which detailed the medical proof it considered, specified the nature of petitioner's complaints, and outlined the results of its physical examination of petitioner, and the court cannot substitute its judgment for that of the Medical Board (Matter of Borenstein, 88 NY2d at 761). Moreover, even if there is a difference in medical opinion on the issue of whether petitioner was disabled from employment, such a difference would not render the Medical Board's rationally-based determination arbitrary or capricious (see Matter of Kuczinski v Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 8 AD3d 283, 284 [2004]; Matter of Russo v [*5]Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 143 AD2d 674, 676 [1988]; Matter of Bartsch v Board of Trustees of New York City Fire Dept. Art. 1-B Pension Fund, 142 AD2d 577, 578 [1988]; Matter of Manza v Malcolm, 44 AD2d 794, 794-795 [1974]). Where conflicting evidence and medical reports are presented before the Medical Board, it is solely within the Medical Board's province to resolve any conflict between medical opinions (see Matter of Kuczinski, 8 AD3d at 284; Matter of Santoro v Board of Trustees of New York City Fire Dept., Art. 1-B Pension Bd., 217 AD2d 660, 660 [1995]; Matter of Bartsch, 142 AD2d at 578). Thus, the fact that some physicians who examined petitioner came to a different conclusion than that of the Medical Board is not a sufficient reason for this court to invalidate a Medical Board decision, since "[w]hether an applicant is disabled is a scientific question which must be determined by the experts who examine the applicant" (Matter of Schwarzrock, 238 AD2d at 597; see also Matter of Nemecek, 99 AD2d at 954-955). The Medical Board was entitled to rely on its own evaluation and expertise in reaching its conclusion (see e.g. Matter of Schwarzrock, 238 AD2d at 597; Matter of Santoro , 217 AD2d at 660).

As there is credible evidence supporting the Medical Board's recommendation, this court may not deem its recommendation that there is insufficient evidence to support an award of disability benefits, to be irrational, arbitrary or capricious. Finding to the contrary would require the court to substitute its judgment for that of the Medical Board, which is something it may not do (Matter of Schwarzrock, 238 AD2d, at 597; see also Matter of Santoro, 217 AD2d at 661; Matter of Brady v City of New York, 22 NY2d 601 [1968]). The fact that there were conflicting interpretations is immaterial and should be resolved in favor of the Medical Board's expertise (Matter of Borenstein, 88 NY2d at 761; see also Matter of Tobin v Steisel, 64 NY2d 254, 258-259 [1985]). Importantly, the court notes that petitioner did not present any evidence from the numerous doctors that examined her which includes a determination that she was disabled from performing her duties as a registered nurse. At most, Dr Paul, who performed the IME found that she had a moderate disability but stated that she could perform all of her usual daily activities with the only restriction being on how much weight she could lift.

Thus, the court finds that the recommendation of the Medical Board which reviewed the medical records as well as performed its own physical examinations of petitioner and the determination of the Board of Trustees was based on credible evidence (see Matter of Clark v New York State & Local Employees' Retirement Sys., 45 AD3d 1035, 1035-1036 [2007]; see Matter of Marzigliano v New York City Employees' Retirement Sys. [NYCERS], 27 AD3d 748, 748 [2006]; Matter of Ackalitis v Murphy, 5 AD3d 381, 382 [2004]). Therefore, based upon the credible evidence before the Medical Board, it cannot be said that respondents' determination was irrational, arbitrary or capricious, and, consequently, there is no basis to annul it (see Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 1479-150 [1997]; Matter of Borenstein, 88 NY2d at 760; Matter of Silveira v New York City Employees' Retirement Sys., 54 AD3d 1043, 1043 [2008]; Matter of Marzigliano, 27 AD3d at 748).

Also, petitioner's request for a judgment directing a trial of the factual and/or medical issues involved herein must be denied. There is no triable issue of fact raised in this proceeding. The court "cannot weigh medical evidence or substitute [its] own judgment for that of the [1-B] Medical Board" (Matter of Santoro v Board of Trustees, 217 AD2d 660 [1995]; see also Matter of Schwarzrock, 238 AD2d at 597; Matter of Appleby v Herkommer, 165 AD2d 727, 728 [1990]). [*6]

With respect to petitioner's request for a judgment directing that the Board of Trustees allow her to present further testimony at a hearing, it is noted that the Medical Board reviewed petitioner's case twice. Petitioner was afforded the opportunity to present evidence at these hearings, and he did in fact present her evidence in support of her claim. The Medical Board is under no further obligation to consider this matter (see Matter of Paul v Board of Trustees of Police Pension Fund of Police Dept. of City of New York, Art. II, 135 AD2d 411, 412 [1987]; Matter of Rinaldi v Board of Trustees of New York City Employees' Retirement Sys., 88 AD2d 870, 870 [1982]).

Petitioner also notes that she is receiving Worker's Compensation as a result of her line of duty injuries. However, the court notes that the administrative determination under the Workers' Compensation Law is not binding on respondents in a proceeding to determine an employee's entitlement to disability retirement benefits (see Matter of DiFrancesco v Comptroller of State of NY, 277 AD2d 762, 763 [2000]; Matter of Keller v Regan, 212 AD2d 856, 858 [1995]). Thus, the Medical Board, which performed its own examinations of petitioner and reviewed all of the evidence before it, was not required to adopt the conclusions of another agency (see Matter of Borenstein, 88 NY2d at 759). Indeed, respondents were under no obligation even to consider such evidence (see Matter of Knight v New York State & Local Employees' Retirement Sys., 266 AD2d 774, 776 [1999]; Matter of Achatz v New York State & Local Police & Fire Retirement Sys., 239 AD2d 857, 858 [1997]).

The court has considered petitioner's remaining contentions and finds them to be without merit.

Accordingly, the petition is denied in its entirety, and the proceeding is dismissed.

This constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C.