Opinion
2012-09-26
In the Matter of Lloyd DRUMMOND, appellant, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, respondent.
Lloyd Drummond, New York, N.Y., appellant pro se. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Paul Rephen and Keith M. Snow of counsel), for respondent.
Lloyd Drummond, New York, N.Y., appellant pro se. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Paul Rephen and Keith M. Snow of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated February 12, 2009, which, upon adopting the recommendation of the Medical Board of the New York City Employees' Retirement System, denied the petitioner's application for disability retirement, the petitioner appeals from a judgment of the Supreme Court, Kings County (Partnow, J.), entered April 15, 2011, which, upon an order of the same court dated November 23, 2010, denied the petition and dismissed the proceeding.
ORDERED that on the Court's own motion, the notice of appeal from the order is deemed a premature notice of appeal from the judgment ( seeCPLR 5520[c] ); and it is further,
ORDERED that the judgment is affirmed, without costs or disbursements.
The Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) determines whether a member applying for disability retirement is disabled ( see Administrative Code of City of N.Y. § 13–167[b] ). The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) is bound by a Medical Board finding that an applicant is not disabled for duty ( see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760, 650 N.Y.S.2d 614, 673 N.E.2d 899). The Medical Board's determination is conclusive if it is supported by “some credible evidence” and is not “arbitrary or capricious” ( id. at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899 [internal quotation marks omitted]; see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 659 N.Y.S.2d 215, 681 N.E.2d 382;Matter of Zamelsky v. New York City Employees' Retirement Sys., 55 A.D.3d 844, 865 N.Y.S.2d 682;Matter of Drew v. New York City Employees' Retirement Sys., 305 A.D.2d 408, 409, 758 N.Y.S.2d 500).
Here, the record demonstrates that the Medical Board considered all of the medical evidence submitted by the petitioner and performed a physical examination of the petitioner. Although the medical conclusions of some of the petitioner's treating physicians differed from those of the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board ( see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899;Matter of Tobin v. Steisel, 64 N.Y.2d 254, 258–259, 485 N.Y.S.2d 730, 475 N.E.2d 101;Matter of Santoro v. Board of Trustees of N.Y. City Fire Dept. Art. 1–B Pension Fund, 217 A.D.2d 660, 629 N.Y.S.2d 484). Based upon the credible evidence before the Medical Board, the determination of the Board of Trustees was neither irrational, nor arbitrary and capricious ( see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d at 149–150, 659 N.Y.S.2d 215, 681 N.E.2d 382;Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 760, 650 N.Y.S.2d 614, 673 N.E.2d 899;Matter of Zamelsky v. New York City Employees' Retirement Sys., 55 A.D.3d 844, 865 N.Y.S.2d 682;Matter of Marzigliano v. New York City Employees' Retirement Sys. [NYCERS], 27 A.D.3d 748, 810 N.Y.S.2d 917;Matter of Drew v. New York City Employees' Retirement Sys., 305 A.D.2d 408, 758 N.Y.S.2d 500).
Contrary to the petitioner's contention, the finding by the Workers' Compensation Board and the Social Security Administration that he is disabled was not binding on the Medical Board ( see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 759, 650 N.Y.S.2d 614, 673 N.E.2d 899;Matter of Barden v. New York City Employees' Retirement Sys., 291 A.D.2d 215, 216, 738 N.Y.S.2d 18;Matter of Kalachman v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 224 A.D.2d 619, 620, 639 N.Y.S.2d 708).
The petitioner's remaining contention is without merit.