Opinion
No. 13368/11.
2012-03-6
In the Matter of the Application of Vincent A. CONCANNON, Petitioner, For a Judgment, Pursuant to Article 78 of the Civil Practice Law and Rules, v. The BOARD OF TRUSTEES OF the NEW YORK FIRE DEPARTMENT PENSION FUND, Subchapter II, and Salvatore Cassano, as Fire Commissioner of the Fire Department of the City of New York and as Chairperson of The Board of Trustees of the New York Fire Department Pension Fund, Subchapter II, Respondents.
Sullivan Papain Block McGrath & Cannavo PC by Michael N. Block, Esq, NY, for Petitioner. Corp Counsel of the City of New York by Ilyse Sisolak, Esq., NY, for Respondent.
Sullivan Papain Block McGrath & Cannavo PC by Michael N. Block, Esq, NY, for Petitioner. Corp Counsel of the City of New York by Ilyse Sisolak, Esq., NY, for Respondent.
ARTHUR M. SCHACK, J.
Petitioner VINCENT A. CONCANNON (CONCANNON), a retired New York City Fire Department (FDNY) firefighter and World Trade Center (WTC) 9/11 first responder, moves, pursuant to Article 78 of the Civil Practice Law and Rules (CPLR), for a judgment: (1) directing respondents, pursuant to the obligations imposed upon them by Title 13 of the New York City (N.Y.C) Administrative Code, including, but not limited to, § 13–316(b), to take the necessary steps to retire petitioner CONCANNON from the FDNY with a line-of-duty accidental disability (ADR) pension, with the WTC presumption, retroactive to September 1, 2010, pursuant to NYC Administrative Code § 13–353.1, which provides that “any condition or impairment of health ... caused by a qualifying World Trade Center condition ... shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence”; (2) directing respondents to pay petitioner's attorney's fees of petitioner in this proceeding; and, (3) granting such other and further relief that the Court deems just and proper.
Petitioner CONCANNON was treated for melanoma on his upper back in 1999 and early 2000. After his treatment at Memorial Sloan Kettering Cancer Center, petitioner returned to full duty several months later. Petitioner, from September 11, 2001 to September 12, 2001 was a first responder to the attacks at the WTC. Then, he worked at the WTC site until approximately June 2002. In April 2008, after being cancer free for more than eight years, petitioner was diagnosed with Stage IV metastatic melanoma in his left lung.
Subsequently, petitioner applied for ADR, pursuant to the WTC presumption. If granted, this would not only pay him 3/4ths pay for the rest of his life, but would insure that his wife and family would continue to receive his pension should he pass away from his cancer. Also, petitioner applied for ADR, pursuant to the “Cancer Bill” (General Municipal Law [GML] § 207–kk). However, the benefits of a “Cancer Bill” ADR would not extend upon petitioner's passing to his wife and family.
Respondent's Medical Board initially recommended petitioner for an ADR pension, pursuant to the WTC presumption. However, at its September 1, 2010 meeting, respondent THE BOARD OF TRUSTEES OF THE NEW YORK FIRE DEPARTMENT PENSION FUND, SUBCHAPTER II (THE BOARD OF TRUSTEES) remanded petitioner's application for ADR, pursuant to the WTC presumption, to the Medical Board for a new determination, while granting petitioner CONCANNON, an ADR pension, pursuant to the “Cancer Bill.”
Ultimately, the Medical Board, after reviewing the November 16, 2011–affidavit of Dr. Jedd D. Wolchok, petitioner's oncologist, in which Dr. Wolchok stated that “it is impossible to determine with any degree of medical certainty that the melanoma discovered in 2008 pre-existed the patient's exposure at the World Trade Center site,” engaged in rank speculation. The Medical Board determined that “ [i]n view of the tendency for melanoma to metastasize long after the initial diagnosis ... this member's recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose prior to the World Trade Center event.” [ Emphasis added ]
Thus, the benefits of an ADR pension, pursuant to the WTC presumption, were denied to petitioner CONCANNON and his family. This determination flies in the face of public policy, the WTC presumption, “enacted in recognition of the enormous sacrifice made by those public employees who assisted in the recovery from the World Trade Center attacks.” ( Maldonado v. Kelly, 86 AD 516, 520 [1d Dept 2011] ). Petitioner CONCANNON and his fellow first responders faithfully worked at the WTC site, serving millions of fellow New Yorkers and Americans without regard to their own personal health and safety. Many first responders gave their last full measure of devotion to New York and our nation. Respondent BOARD OF TRUSTEES, for the City of New York, as a matter of public policy, has an obligation to petitioner CONCANNON and his family. President Abraham Lincoln could have been prophesizing about WTC first responders and their “Ground Zero” work when he gave, on November 19, 1863, his Gettysburg Address, at the dedication of the Gettysburg National Cemetery, where he eloquently said:
we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract ... It is for us the living, rather, to be dedicated here to the unfinished work which they ... have thus far so nobly advanced ... that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain.
Therefore, as will be explained, the instant petition is granted to the extent that the February 23, 2011 determination of respondent BOARD OF TRUSTEES with respect to petitioner CONCANNON is annulled. This determination was arbitrary and capricious or an abuse of discretion. Further, petitioner CONCANNON is granted a line of duty ADR pension, pursuant to the World Trade Center presumption (N.Y.C Administrative Code § 13–353.1), retroactive to September 1, 2010. Petitioner's request for attorney's fees is denied because it is not authorized by agreement of the parties, statute or court rules.
Background
Petitioner CONCANNON was appointed to the FDNY on January 16, 1994. In December 1999, petitioner was diagnosed with a malignant melanoma on his left shoulder. This lesion and four axillary nodes were surgically removed in January 2000. Petitioner returned to full duty in the spring of 2000. Petitioner, on September 11, 2001, responded to the attacks at the WTC, working at “Ground Zero” for about 30 hours until the evening of September 12, 2001. Thereafter, petitioner worked at the WTC site on a regular basis until approximately June 2002.
Petitioner was “cancer free” and in remission from the conclusion of his 2000 treatment for skin melanoma until April 2008, when he was diagnosed with a Stage IV metastatic melanoma in his left lower lung lobe. Thereafter, the FDNY placed petitioner on medical leave.
Petitioner, on May 12, 2010, appeared before the Medical Committee of FDNY's Bureau of Health Services. In the Medical Committee's May 12, 2010–report, submitted by Dr. Kerry Kelly, FDNY's Chief Medical Officer and a Medical Committee Member, to respondent Fire Commissioner SALVATORE CASSANO (CASSANO), the Medical Committee noted that petitioner had: prior skin melanoma on his left upper back; been “cancer free” for eight years; and, returned to full duty in the spring of 2000. Further, the Medical Committee found petitioner permanently unfit for firefighting duties and diagnosed petitioner with “Metastatic melanoma, status post World Trade Center exposure.”
Petitioner, in light of the Medical Committee's disability finding, applied to the BOARD OF TRUSTEES for ADR, under both the “Cancer Bill” (GML § 207–kk) and the WTC presumption (N.Y.C Administrative Code § 13–353[1][a] ). Respondent Fire Commissioner CASSANO applied to the BOARD OF TRUSTEES for petitioner to be granted ADR, pursuant only to the Cancer Bill. Under the Cancer Bill (GML § 207–kk), an FDNY firefighter who passed a physical examination upon entry into service, and who is subsequently diagnosed with certain cancers, including melanoma, is presumed to have incurred his or her cancer in the line of duty. The WTC presumption (N.Y.C Administrative Code § 13–353[1][a] ), states:
Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence.
Respondent's Medical Board, on July 8, 2010, examined petitioner. The Medical Board, after its examination of petitioner CONCANNON and its review of petitioner's extensive medical records, including the May 12, 2010–FDNY Medical Committee report, unanimously recommended that petitioner be granted ADR, pursuant to both the Cancer Bill and the WTC presumption.
Petitioner's application for an ADR pension was placed on the calender of respondent BOARD OF TRUSTEES' September 1, 2010 meeting. At the September 1, 2010 meeting, Trustee Elizabeth D. Botwin, a representative of the Mayor's Office and Deputy Commissioner of the Department of Finance, stated, with respect to petitioner's ADR application, “[i]n reviewing the medical history, it notes that he had the condition of the melanoma before 9/11. He was out with that condition between January and April of 2001 [actually 2000]. So, since it predated the World Trade Center, we have a question about the correctness of ascribing the metastatic melanoma to World Trade Center exposure [9/1/10 Meeting Tr., p. 106, lines 6–16].”
Then, Dr. Kelly, who had examined petitioner for FDNY's Medical Committee and who was present at the meeting to help explain medical issues to the BOARD OF TRUSTEES, stated:
I just happen to know this case. So, he had been cancerfree, and I believe—I could be wrong—I think he went back to full duty and, therefore, was working, and after 9/11 had a recurrence with metastatic.
So, melanoma, also any cancer, it's a matter of change in your immunity or stress in your system too. So, this was a person who appeared to be doing well and then had this recurrence. [9/1/10 Meeting Tr., p. 107, lines 12–25].
When asked whether petitioner's exposure during 9/11 exacerbated petitioner's condition, Dr. Kelly stated, “Yes. In other words, he was cancerfree, doing well. Any stress or any change in immunity could certainly be brought on by that type of exposure [9/10/10 Meeting Tr., p. 108, lines 12–17].” Moreover, in repeating her explanation, Dr. Kelly said, “[h]e was doing well, he was cancerfree. He had the exposure of 9/11. Stress such as that or change in immunity could definitely bring out cancer or change your likelihood of having a recurrence [9/1/10 Meeting Tr., p. 108, line 20–p. 109, line 2].”
There was extensive discussion by the Trustees about their duties [9/1/10 Meeting Tr., pp. 117–123]. Then, Trustee and Deputy Fire Commissioner Douglas White, presiding as Acting Chairman for respondent CASSANO, announced “The city side is going to caucus [9/1/10 Meeting Tr., p. 123, lines 17–18].” The BOARD OF TRUSTEES, after the break, granted ADR, under the Cancer Bill, to petitioner CONCANNON and remanded petitioner's application for ADR, pursuant to the WTC presumption, back to the Medical Board. The BOARD OF TRUSTEES' remand specifically provided that the remand would include the comments made by Dr. Kelly with respect to causation [9/1/10 Meeting Tr., pp. 127–128].
Then, as the Medical Board stated in its October 14, 2010–report, it “again considered” petitioner's application for ADR, pursuant to the WTC presumption. The October 14, 2010–Medical Board report noted that it was handling the case “as a remand from the Board of Trustees ... questioning the recommendation that the disability, namely the recurrence of his melanoma should be granted under the provisions of the World Trade Center Bill.” In the report's next paragraph, the same Medical Board that, three months earlier, found petitioner deserving of ADR, pursuant to the WTC presumption, now found “[a]fter reviewing the above, it is the recommendation of the 1–B Medical Board that the application for disability retirement under the provisions of the World Trade Center Bill for the recurrence of the melanoma be denied.” The report states that the denial of ADR, pursuant to the WTC presumption, was made “[a]fter reviewing the above.” However, there is no medical information “above” and no specific reference to the September 1, 2010 BOARD OF TRUSTEES' minutes. The only seemingly new information is that the BOARD OF TRUSTEES sought clarification from the Medical Board of its previous unanimous July 8, 2010 decision to recommend petitioner for ADR, pursuant to the WTC presumption. The failure of the Medical Board to explain why it changed its previous decision violates the principal that its decision “must be set forth in such manner as to permit adequate judicial review.” (Fernandez v. Board of Trustees of New York Fire Dept. Pension Fund, 81 AD3d 950, 952 [2d Dept 2011] ).
The matter of petitioner's application for ADR, pursuant to the WTC presumption, next appeared on the BOARD OF TRUSTEES' calendar at its November 19, 2010 meeting. Trustee James M. Slevin, Vice President of the Uniformed Firefighters' Association, noted that he did not believe that the WTC presumption had been rebutted for petitioner CONCANNON, because of the affidavit he had received from plaintiff's treating oncologist, Dr. Wolchok [11/19/10 Meeting tr., pp. 19 –20]. Then, the BOARD OF TRUSTEES, based upon Dr. Wolchok's affidavit and the absence of any explanation by the Medical Board for its October 14, 2010 recommendation, remanded petitioner's application back to the Medical Board with the Wolchok's affidavit, directing that the Medical Board address petitioner's full medical history in explaining why it believed the WTC presumption was rebutted.
Dr. Wolchok stated, in ¶ 9 of his November 16, 2010–affidavit:
I understand that the World Trade Center legislation created a rebuttable presumption that Firefighter Concannon's 2008 melanoma was the result of his exposure at the World Trade Center site. It is my opinion that there is no evidence in the patient's history and/or medical record sufficient to rebut any such presumption as it is impossible to determine with any degree of medical certainty that melanoma discovered in 2008 pre-existed the patient's exposure at the World Trade Center site. [ Emphasis added ]
On January 13, 2011, the Medical Board again reviewed petitioner's ADR application, with the WTC presumption. The Medical Board noted in its report that Dr. Wolchok stated that “it is impossible to determine with any degree of medical certainty that the melanoma discovered in 2008 pre-existed the member's exposure to the World Trade Center event.” Dr. Wolchok's affidavit, stating that no one could scientifically attribute petitioner's 2008 cancer to the 2000 melanoma, was the only new evidence considered by the Medical Board at its January 13, 2011 meeting. However, the Medical Board determined:
In view of the tendency for melanoma to metastasize long after the initial diagnosis, it continues to be the opinion of the 1–B Board that this member's recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose [sic] prior to the World Trade Center event. Therefore, it is our unanimous opinion that our decision remains as previous. [ Emphasis added ]
The BOARD OF TRUSTEES, at its February 23, 2011 meeting, voted to adopt the January 13, 2011 Medical Board report and deny petitioner's application for ADR, pursuant to the WTC presumption. Trustee Slevin noted, at p. 24, lines 4–7, that “I don't think that their [the Medical Board's] determination rises to the level to rebut the presumption.”
Trustee Slevin was correct. The Medical Board's decision clearly does not rebut the WTC presumption. It is insufficient to overcome the WTC presumption by citing a “tendency for melanoma to metastasize long after the initial diagnosis.” The same Medical Board that on July 8, 2010 awarded petitioner ADR, pursuant to the WTC presumption, failed to articulate any new medical evidence for changing its initial determination on October 14, 2010 and January 13, 2011. A “tendency” is little more that a possibility and not credible evidence required to deprive petitioner of his ADR pension, pursuant to the WTC presumption. The only doctor who made a determination to a medical certainty was Dr. Wolchok. He determined that no one is able to show that petitioner's 2000 cancer was related to petitioner's 2008 cancer. If the two cancers cannot be scientifically linked, and there is a presumption that petitioner's lung cancer is related to his WTC exposure, it is clear that the 1–B Medical Board and the BOARD OF TRUSTEES were arbitrary and capricious or abused their discretion in not awarding to petitioner CONCANNON an ADR pension, pursuant to the WTC presumption.
Discussion
It is axiomatic that in an Article 78 proceeding the function of the court is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious ( see Pell v. Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231 [1974] ). “Arbitrary action is without sound basis in reason and is generally taken without regard to the fact.” ( Pell at 231). A rational basis exists where the determination is “[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination.” (Ador Realty, LLC v. Division of Housing and Community Renewal, 25 AD3d 128, 139–140 [2d Dept 2005], quoting Pell at 231).
A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law. ( See Pell at 231; Matter of Brockport Cent. School Dist. v. New York State & Local Employees' Retirement System, 270 A.D.2d 706, 707–708 [3d Dept 2000] ). Pursuant to CPLR § 7803(3), the question raised in an Article 78 proceeding is “whether a determination was made in violation of lawful procedure, was affected by an error of law of was arbitrary and capricious or an abuse of discretion.”
In the instant action petitioner CONCANNON is entitled to an ADR pension, pursuant to the WTC presumption, if he can establish that he worked the requisite number of hours at the site and was diagnosed with one of the enumerated conditions, unless respondent BOARD OF TRUSTEES, based upon credible evidence, establishes that the petitioner's condition was not caused by his work at the WTC site. ( See NYC Administrative Code § 13–353.1; Maldonado v. Kelly, 86 AD3d 516, 519 [1d Dept 2011] ).There is no dispute that petitioner CONCANNON worked the required number of hours at the WTC site and his cancer is one of the enumerated conditions covered by the WTC presumption. Thus, the issue before the Court is whether petitioner's disability qualifies him for an ADR pension, pursuant to the WTC presumption, and if the BOARD OF TRUSTEES had appropriately rebutted the WTC presumption that petitioner's cancer was causally related to his work at the WTC site.
“The Board of Trustees' determination to deny benefits is reviewed under the arbitrary and capricious standard' which, in the context of accidental death and disability determinations, has been construed to require some credible evidence' (Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760 [1996];see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 147 [1997] ).” ( Fernandez at 952). ( See also Maldonado at 519). “Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered ... and further that it must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion [ Emphasis added ].” ( Matter of Meyer at 147). In applying this standard, “Courts have found an absence of the required quantum of credible evidence when the denial was premised only on a summary conclusion of no causation and lacked any factual basis (Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d at 147).” ( Fernandez at 952). Courts, on the other hand, have upheld board determinations where they are supported by “objective medical evidence or a rational, and fact-based medical explanation.” ( Matter of Meyer at 147). ( See Fernandez at 952).
In the instant action, the Medical Board's January 13, 2011–speculative statement that “[i]n view of the tendency for melanoma to metastasize long after the initial diagnosis, it continues to be the opinion of the 1–B Board that this member's recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose [sic] prior to the World Trade Center event” does not rise to the level of competent evidence that could be relied upon by the BOARD OF TRUSTEES to overcome the statutory presumption. Although petitioner's skin melanoma diagnosed prior to 9/11 is an evidentiary fact that may properly be relied upon by the BOARD OF TRUSTEES, the Medical Board's assertion that the lung melanoma diagnosed in 2008 is connected or related to the skin melanoma is wholly conclusory. While such a connection between the skin melanoma and the lung melanoma may be known to a medical professional, it is not so commonly known that the Medical Board's assertion of the connection may be considered as an opinion having evidentiary weight without more explanation or detail.( See Romano v. Stanley, 90 N.Y.2d 444, 451–452 [1997];Matter of Macri v. Kelly, 92 AD3d 53, 2011 N.Y. Slip Op 09542 [1d Dept, Dec. 27, 2011]; Matter of LoPinto v. Ward, 124 A.D.2d 497 [1d Dept 1986] ).
Additionally, the Medical Board, in making its broad assertion regarding the connection between petitioner's skin and lung melanoma, did not address the assertion of petitioner's treating doctor, Dr. Wolchok, that it was “impossible” to assert with “any degree of medical certainty” that petitioner's 2008 lung melanoma preexisted 9/11. ( See Matter of Fernandez at 952). Moreover, even if the Medical Board's assertion that melanomas tend to metastasize sufficiently supports finding a connection between the skin melanoma and the 2008 lung melanoma, that assertion did not address Dr. Kelly's opinion that petitioner's work at the WTC site exacerbated petitioner's condition and caused the cancer or recurrence. ( See Fernandez at 952). Indeed, petitioner could have obtained an ADR pension based upon such an exacerbation. ( See Matter of Tobin v. Steisel, 64 N.Y.2d 254, 260 [1985];Matter of Conenna v. Kelly, 28 Misc.3d 1203[A] [Sup Ct, New York County 2010] ).
Nevertheless, respondents assert that the instant matter is factually similar to the Police Pension Fund's interpretation of the World Trade Center Bill in Maldonado at 517–518. The Maldonado Court denied the petition, finding that the Police Pension Board had credible evidence supporting its finding that petitioner's cancer was not causally related to his work at the WTC site. However, Maldonado is readily distinguishable because the petitioner in Maldonado had a single cancerous mass and Maldonado's treating doctor essentially conceded that Maldonado's WTC exposure did not cause his cancerous mass, but only suggested, in equivocal and speculative language, that Maldonado's WTC exposure may have aggravated his condition. ( Maldonado at 520).
In the instant action, in contrast to Maldonado, petitioner CONCANNON was cancer-free for eight years after he was treated for the skin melanoma and petitioner CONCANNON's 2008 condition manifested itself at a location apparently unrelated to his prior skin melanoma. Although Drs. Wolchok and Kelly could have provided more detail, their opinions were unequivocal.
Moreover, contrary to respondents' assertion, the record before the Board of Trustees is more akin to the records at issue in Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund, Article II (86 AD3d 427 [1d Dept 2011], in which the Court found that no credible evidence supported the Medical Board's assertion that the size of petitioner's tumor “meant that it began growing before September 11, 2001” and “[n]or is there credible evidence to support the Medical Board's conclusion that petitioner's cancer was caused by her episode of ulcerative colitis and the corrective surgery, which occurred nearly 20 years prior to the onset of the cancer.” ( Bitchatchi at 427–428).
The Court, in Fernandez, noted that the Medical Board's assertion, that it appeared that the death of petitioner's decedent firefighter husband from drowning did not appear to be secondary to his WTC exposure, failed to address evidence submitted by petitioner that decedent had a heart condition caused by World Trade Center toxins which weakened his heart and caused his drowning. Thus, the Court found that “the explanation provided by the Medical Board was insufficient” and “the judgment must be reversed, the petition must be reinstated, and the petition must be granted.” ( Fernandez at 952).
Accordingly, this Court finds in the instant action that the BOARD OF TRUSTEES did not have credible evidence sufficient to support its finding that the WTC presumption had been overcome. The Medical Board's determination that since a melanoma has a “tendency” to metastasize, it must have metastasized in petitioner's lung, is pure speculation and not a substitute for the “credible evidence” needed to rebut the WTC presumption. It is illogical that a blanket generality of the “tendency” of a particular type of cancer is deemed an articulated, rational and fact-based medical opinion to overcome the WTV presumption afforded to petitioner. Further, the determination of the Medical Board and the BOARD OF TRUSTEES is unconscionable and contrary to the law and spirit of the WTC presumption, a matter of public policy. Therefore, the BOARD OF TRUSTEES' February 23, 2011 determination denying petitioner's application for an accidental disability pension under the World Trade Center Bill is annulled and petitioner CONCANNON is granted an ADR pension, pursuant to the WTC presumption, retroactive to September 1, 2010, the day on which the BOARD OF TRUSTEES granted petitioner an ADR pension, pursuant to the Cancer Bill. ( See Matter of Macri, supra; Bitchatchi at 428; Fernandez at 951; Matter of Walsh v. DiNapoli, 83 AD3d 1278, 1279–1280 [3d Dept 2011]; Matter of McCarthy v. Board of Trustees of N.Y. City Police Pension Fund, Art. II, 306 A.D.2d 156, 157 [1d Dept 2003]; Matter of Lunt v. Kelly, 227 A.D.2d 200, 201 [1d Dept 1996]; Matter of Colon v. Kelly, 2011 N.Y. Slip Op 32602[U][Sup Ct, New York County 2011]; Matter of Conenna, supra ).
Finally, petitioner's request for attorney's fees is denied. Petitioner failed to identify a statute, court rule, or agreement providing for the recovery of attorney's fees. “Legal fees and disbursements are incidents of litigation, and the prevailing party may not collect them from the unsuccessful party unless an award is authorized by agreement between the parties, statute, or court rule ( see Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5 [1986];Khanal v. Sheldon, 55 AD3d 684, 696 [2d Dept 2008] ).” (Blair v. O'Donnell, 85 AD3d 954, 956 [2d Dept 2011] ). ( See Hynes v. City of Buffalo, 52 AD3d 1216, 1217 [4d Dept 2008] ).
Conclusion
Accordingly, it is
ORDERED, that the application of petitioner VINCENT A. CONCANNON, for a judgment, pursuant to Article 78 of the Civil Practice Law and Rules, is granted to the extent that the February 23, 2011 determination of respondent, THE BOARD OF TRUSTEES OF THE NEW YORK FIRE DEPARTMENT PENSION FUND, SUBCHAPTER II, denying a line-of-duty accidental disability pension, with the World Trade Center presumption (New York City Administrative Code § 13–353.1), to petitioner VINCENT A. CONCANNON is annulled as arbitrary and capricious or an abuse of discretion; and it is further
ORDERED, that petitioner VINCENT A. CONCANNON is granted a line-of-duty accidental disability pension, pursuant to the World Trade Center presumption (New York City Administrative Code § 13–353 .1), retroactive to September 1, 2010.
This constitutes the Decision and Order of the Court.