        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

309
TP 16-01446
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF ADOLPHUS BARKOR, PETITIONER,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, RESPONDENT.


CREIGHTON, JOHNSEN & GIROUX, BUFFALO (CATHERINE CREIGHTON OF COUNSEL),
FOR PETITIONER.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (MARY B. SCARPINE OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Catherine R.
Nugent Panepinto, J.], entered August 19, 2016) to review a
determination of respondent. The determination denied petitioner
benefits pursuant to General Municipal Law § 207-c.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, a City of Buffalo police officer,
commenced this CPLR article 78 proceeding seeking to annul the
determination of the Hearing Officer that he is not entitled to
General Municipal Law § 207-c benefits. At the time of the subject
on-duty injury, petitioner was already receiving benefits pursuant to
section 207-c as a result of prior on-duty injuries. After returning
to work in a light-duty capacity in the camera room, petitioner
twisted his ankle exiting the restroom and allegedly exacerbated the
prior injuries. Following a hearing, the Hearing Officer determined
that petitioner was able to perform his light-duty assignment in the
camera room and thus was not totally disabled. We agree with
respondent that the Hearing Officer’s determination that petitioner
could continue to perform the duties of a camera monitor is supported
by substantial evidence (see Matter of Hensel v City of Utica, 115
AD3d 1217, 1218, lv denied 23 NY3d 908, rearg denied 24 NY3d 975;
Matter of Quintana v City of Buffalo, 114 AD3d 1222, 1223-1224, lv
denied 23 NY3d 902; Matter of Clouse v Allegany County, 46 AD3d 1381,
1381-1382).

     Although petitioner presented evidence suggesting that he was not
able to work at all, the Hearing Officer instead credited other
evidence that petitioner could perform a light-duty assignment. “The
                                 -2-                           309
                                                         TP 16-01446

Hearing Officer was entitled to weigh the parties’ conflicting medical
evidence” (Clouse, 46 AD3d at 1382), and “ ‘[w]e may not weigh the
evidence or reject [the Hearing Officer’s] choice where the evidence
is conflicting and room for a choice exists’ ” (id., quoting Matter of
CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d
69, 75; see Matter of Anderson v City of Buffalo, 114 AD3d 1160, 1161;
Quintana, 114 AD3d at 1224). Further, petitioner did not prove that
any medication he was taking sedated him to the point of not being
able to perform his duties in the camera room (see Quintana, 114 AD3d
at 1225).

     Inasmuch as petitioner never claimed during the hearing that
respondent failed to pay specific medical expenses, his contention in
that regard is not properly before us (see Matter of Molinsky v New
York State Dept. of Motor Vehs., 105 AD3d 960, 960-961). “It is well
established that the scope of [a] CPLR article 78 proceeding,
following an administrative hearing, is limited to review of the
issues raised and addressed in that hearing” (Quintana, 114 AD3d at
1223 [internal quotation marks omitted]).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
