Opinion
2003-05548.
December 20, 2004.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, dated September 27, 2002, which denied the petitioner's application for accidental disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Barasch, J.), dated March 27, 2003, which denied the petition and dismissed the proceeding.
Before: Ritter, J.P., Goldstein, Smith and Fisher, JJ., concur.
Ordered that the judgment is affirmed, with costs.
Where, as here, the respondent Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, denies an application for an accident disability pension by a tie vote, pursuant to Matter of City of New York v. Schoeck ( 294 NY 559), this Court may set aside that determination only if it can conclude as a matter of law that the petitioner's disability was a natural and proximate result of a service-related accident ( see Matter of Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art II, 60 NY2d 347; Matter of Guidal v. Board of Trustees of N.Y. City Fire Dept., Art 1-B Pension Fund, 275 AD2d 458). If there is any credible evidence that the disability was not caused by service-related injuries, the determination must stand ( see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139). Only where the circumstances allow but one inference may the court decide, as a matter of law, what inference should be drawn ( see Matter of Guidal v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, supra).
In view of the medical evidence presented, we cannot conclude, as a matter of law, that the petitioner's disability was a natural and proximate cause of a service-related accident ( see Matter of Wesarg v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 246 AD2d 601; Matter of Fagan v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 185 AD2d 341). Accordingly, there is no basis to disturb the determination.