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

916
TP 13-00235
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF CHARLIE CHILDS, PETITIONER,

                    V                             MEMORANDUM AND ORDER

CITY OF LITTLE FALLS AND CITY OF LITTLE FALLS
FIRE AND POLICE BOARD, RESPONDENTS.


GLEASON, DUNN, WALSH & O’SHEA, ALBANY (RONALD G. DUNN OF COUNSEL), FOR
PETITIONER.

MARK CURLEY, CORPORATION COUNSEL, UTICA (ARMOND J. FESTINE OF
COUNSEL), FOR RESPONDENTS.


     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, Herkimer County [Normal I.
Siegel, A.J.], entered January 25, 2013) to review a determination of
respondents. The determination terminated the benefits petitioner was
receiving pursuant to General Municipal Law § 207-a.

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

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination of respondent City of Little Falls
Fire and Police Board that adopted the decision and recommendation of
the Hearing Officer and terminated the benefits petitioner had been
receiving pursuant to General Municipal Law § 207-a as a result of
injuries that he purportedly sustained in the course of his work as a
firefighter. On March 18, 2005, petitioner injured his neck and was
disabled from work. He was receiving benefits pursuant to
section 207-a until 2010, when respondent City of Little Falls
appointed a hearing officer and commenced an administrative proceeding
to determine whether petitioner’s section 207-a benefits should be
terminated.

     Contrary to petitioner’s contention, respondents properly
terminated his benefits upon establishing that his disability from
work was not causally related to his job duties (see generally Matter
of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499; Matter of
Tancredi v Town of Harrison/Vil. of Harrison Police Dept., 72 AD3d
832, 834). Contrary to petitioner’s further contention, we conclude
that the Hearing Officer’s determination that petitioner’s disability
was not causally related to his job duties is supported by substantial
                                 -2-                           916
                                                         TP 13-00235

evidence (see Matter of Clouse v Allegany County, 46 AD3d 1381, 1381-
1382; see generally 300 Gramatan Ave. Assoc. v State Div. of Human
Rights, 45 NY2d 176, 181-182). Although petitioner presented evidence
to the contrary, “[t]he Hearing Officer was entitled to weigh the
parties’ conflicting medical evidence and to assess the credibility of
witnesses, 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’ ” (Clouse, 46 AD3d at 1382, quoting Matter of CUNY-
Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69,
75; see Matter of Miserendino v City of Mount Vernon, 96 AD3d 946,
947).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
