Opinion
11917N 11917NA Index No. 100870/2018 Case No. 2019-04099 2019-4626
10-01-2020
In re Christopher DREW, Petitioner–Respondent, v. James O'NEILL, etc., et al., Respondents–Appellants.
James E. Johnson, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for appellants. Chet Lukaszewski, P.C., Garden City (Chet Lukaszewski of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for appellants.
Chet Lukaszewski, P.C., Garden City (Chet Lukaszewski of counsel), for respondent.
Gische, J.P., Oing, Singh, Mendez, JJ.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered March 1, 2019, granting the petition to vacate a determination of respondent Board of Trustees of the Police Pension Fund, dated May 9, 2018, which denied petitioner's application for accident disability retirement (ADR), and awarded petitioner ADR retroactive to December 1, 2010, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed. Appeal from order, same court and Justice, entered July 22, 2019, which, inter alia, upon reargument, adhered to its prior determination, unanimously dismissed, without costs, as academic.
The denial of ADR was not arbitrary and capricious. The relevant date for purposes of disability is at or prior to the applicant's retirement from service (see Administrative Code of City of N.Y. § 13–252; Matter of Gullo v. Kelly, 50 A.D.3d 449, 450, 855 N.Y.S.2d 499 [1st Dept. 2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 390, 894 N.E.2d 654 [2008] ; Matter of Bansley v. Safir, 299 A.D.2d 185, 748 N.Y.S.2d 866 [1st Dept. 2002] ; see also Matter of Mulheren v. Board of Trustees of Police Pension Fund, Art. II, 307 A.D.2d 129, 134, 761 N.Y.S.2d 49 [1st Dept. 2003], lv denied 100 N.Y.2d 525, 760 N.Y.S.2d 726, 790 N.E.2d 1155 [2003] ). The Medical Board's consideration of evidence and reports after petitioner's retirement and its conclusion that petitioner was disabled several years after his retirement, does not change the relevant date for entitlement to ADR.
The Medical Board was entitled to rely on its own examinations and testing of petitioner as well as its review of petitioner's medical records, which provided some credible evidence to support its finding that petitioner was not disabled at the time of his retirement (see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760–761, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ; Matter of Khurana v. Kelly, 73 A.D.3d 497, 901 N.Y.S.2d 201 [1st Dept. 2010], lv denied 15 N.Y.3d 715, 2010 WL 5110093 [2010] ). The Medical Board was not bound by the contrary opinions of petitioner's treating physicians ( Khurana at 497, 901 N.Y.S.2d 201 ; see Matter of Dominguez, 179 A.D.3d 574, 114 N.Y.S.3d 633 [1st Dept. 2020] ).