Opinion
May 28, 1996
Appeal from the Supreme Court, New York County (William McCooe, J.).
Since the subject denial of petitioner's claim for accident disability benefits was the result of a 6 to 6 tie vote by respondent Board of Trustees, the decision can be set aside on judicial review only if it can be determined "as a matter of law on the record" that petitioner's disabling psychological condition was the natural and proximate result of the service-related accident of December 1981 ( Matter of Canfora v Board of Trustees, 60 N.Y.2d 347, 352). Such a determination cannot be made here if only because of the conflicting medical opinion presented to the Board on the issue of causation ( see, Matter of Polak v. Board of Trustees, 188 A.D.2d 341, lv denied 81 N.Y.2d 706; Matter of Appleby v. Herkommer, 165 A.D.2d 727, 728). We would also note that petitioner did not claim a psychological injury until in or about January 1984, after the Board's September 1983 rejection of her first application for accident disability based only on the physical injuries she sustained in the accident, and that this delay, together with the absence of proof showing when the disabling symptoms first became manifest, tends to support the Medical Board's finding as to causation.
Concur — Murphy, P.J., Sullivan, Wallach, Nardelli and Tom, JJ.