Opinion
99 100606/14.
02-04-2016
In re Kimberly FUSCO, Petitioner–Appellant, v. TEACHERS' RETIREMENT SYSTEM OF the CITY OF NEW YORK, et al., Respondents–Respondents.
Chet Lukaszewski, P.C., Lake Success (Chester Lukaszewski of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Chet Lukaszewski, P.C., Lake Success (Chester Lukaszewski of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Opinion
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered on or about February 10, 2015, denying the petition brought pursuant to CPLR article 78 to annul respondents' determination, dated April 7, 2014, which denied petitioner's application for accidental disability retirement benefits, unanimously affirmed, without costs.
The determination that petitioner was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work, was supported by some credible evidence (see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 145, 659 N.Y.S.2d 215, 681 N.E.2d 382 1997; 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 1996 ). Such evidence included the examination of petitioner by respondent's Medical Board and its review of conflicting medical evidence from petitioner's treating physicians, as well as petitioner's acknowledgment that she could independently perform daily life activities such as bathing, dressing, and driving (see Matter of Mininni v. New York City Employees' Retirement Sys., 279 A.D.2d 428, 719 N.Y.S.2d 853 1st Dept.2001, lv. denied 96 N.Y.2d 722, 733 N.Y.S.2d 374, 759 N.E.2d 373 2001; Matter of Dabney v. New York City Employees' Retirement Sys., 256 A.D.2d 86, 681 N.Y.S.2d 250 1st Dept.1998 ). The disability finding of the Social Security Administration, rendered after the subject determination, is not dispositive of the Medical Board's disability determination (see id.; see also Matter of Barden v. New York City Employee's Retirement Sys., 291 A.D.2d 215, 738 N.Y.S.2d 18 1st Dept.2002 ).
Furthermore, petitioner failed to show that any disability was the result of an accident. There is a lack of evidence that petitioner's fall was caused by anything other than her own misstep while ascending the stairs to the school (see Matter of Starnella v. Bratton, 92 N.Y.2d 836, 839, 677 N.Y.S.2d 62, 699 N.E.2d 421 1998; Matter of Devers v. Kelly, 127 A.D.3d 640, 8 N.Y.S.3d 292 1st Dept.2015, lv. denied 26 N.Y.3d 905, 2015 WL 5445695 2015 ).
We have considered petitioner's remaining contentions and find them unavailing.