Opinion
109931/10.
May 13, 2011.
DECISION, ORDER and JUDGMENT
In this Article 78 proceeding, petitioner Jean Lang (petitioner or Lang) seeks a judgment annulling the determination of respondents Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, the Board of Trustees of the Police Pension Fund, Article II (the Board of Trustees), the New York City Police Department (NYPD) and the City of New York (collectively, respondents) denying her an accident disability retirement (ADR), ordering respondents to retire her with an ADR, or, alternatively, an order remanding this matter to respondents for reconsideration of petitioner's application. Petitioner also seeks an order, pursuant to CPLR 2307 (a), directing respondent to serve and file all materials related to petitioner's claim.
A police officer is entitled to ADR, which pays a greater benefit than an ordinary disability retirement (ODR), if she sustained an on-duty disabling injury as a result of an "accident" within the meaning of the Administrative Code of the City of New York § 13-252, provided that said disability is not the result of the officer's wilful negligence. "Accident" is not defined in § 13-252, but the Court of Appeals adopted the "commonsense definition of a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'" ( Lichtenstein v. Bd of Trustees, 57 NY2d 1010). In this case, it is undisputed that Lang suffered a disabling injury in the line of duty, and the only issue is whether the Board of Trustees properly refused her an ADR.
Lang was appointed to the uniformed force of the NYPD in April of 1991 and, during the course of her career, ascended to the rank of sergeant. She was a member of, and a contributor to, the NYPD's pension fund until her retirement in 2010.
On March 8, 2008, Lang was on duty at her assigned precinct. She was in the bathroom near the female supervisor's locker room. In response to a police radio call, she exited the bathroom, tripping and falling over exposed wires that were strung across the floor of the doorway from the bathroom to the locker room. She sustained serious injuries. The Medical Board found that petitioner was disabled as a result of these injuries, and recommended she be granted an ADR (Answer, Ex. 5). The Board of Trustees adopted the Medical Board's findings that petitioner was disabled as a result of the fall.
However, the Board of Trustees determined that petitioner had not established that the fall constituted an "accident" for disability retirement purposes. Accordingly, on June 9, 2010, petitioner was retired on ODR pursuant to a six to six vote of the Board of Trustees (Petition, Ex. G). The Board of Trustees minutes explain the decision as follows: "We do not believe the circumstances as outlined rise to the level of an accident . . . There were no records available to establish the condition that the officer was unfamiliar with. . . ." ( Id., 44).
Lang contends that, during the period December 2007 — January 2008, the precinct was equipped with new computers, one of which was placed in the female supervisor's locker room, and that wires were run across the locker room floor. She asserts that the wires had initially been secured to the floor by tape and that, at the time of the accident, "the tape was unexpectedly no longer present and the wires became raised from the floor." Petitioner asserts that her trip and fall over these wires meets the definition of an "accident" for pension purposes, thereby entitling her to an ADR.
The NYPD Line of Duty Injury Report, dated March 15, 2008 (LODI Report) (LODI Report annexed as Exh. A to Petition), discloses the following relevant information: (1) the section captioned "Patrol/Command Supervisor's Report of Inquiry," contains the report of Sgt. McEnroe, noting that petitioner "tripped over exposed wires causing her to fall"; (2) the section captioned "Investigating Supervising Officer's Report and Recommendation as to Line of Duty Designation," contains the statement of Lt. Smith that the Lieutenant "physically examined the female supervisor locker room and observed numerous wires on the ground running between the bathroom and locker room"; and (3) the "Injured Member's" section of the LODI Report contains petitioner's statement that she "tripped over exposed wires that were laying on the floor from one side of the opening to the other side." There is no mention of any "tape" in any section of the LODI report.
Over two years after the date of injury, petitioner submitted a written statement, dated April 9, 2010, to the Board of Trustees, that stated:
The undersigned was assigned to the 75th Pct. in February 2005. In December 2007 through January 2008 the command was equipped with new computers. One was placed in the female supervisors lockers room. Wires from the computers, along with others were placed crossing the doorway from the locker room to the bathroom and were secured to the floor with duck tape causing no hazard. On the day of my injury the tape had been removed and the wires were left raised from the floor causing myself to trip over them.
(Petitioner's Statement dated April 9, 2010, annexed as Exh. C to Petition).
In support of her argument, petitioner relies on Matter of Flannelly v Board of Trustees of N.Y.C. Police Pension Fund ( 278 AD2d 113 [1st Dept 2000]). In that proceeding, the petitioner therein had tripped and fallen over a "tangle of television and VCR wires in the women's locker room of the police station where she worked, while performing a routine security inspection" ( id.). The Appellate Division, First Department found that, as a matter of law, the petitioner in Flannelly had suffered a service-related accident, entitling her to an ADR. The court noted that, "[t]he record shows that the wires were in an unexpected location at the entrance of the locker room, a situation that had been recently created by painters who, unbeknownst to petitioner or anyone else in the police station, had moved the television and VCR and unplugged their wires" ( id., at 113).
In opposing the instant petition, respondents assert that the Board of Trustees' determination that petitioner's trip and fall was not an "accident" was based on substantial evidence "as there were no contemporaneous records available to establish that petitioner was unaware or unfamiliar with the condition of the wires at the time of her accident. As such, the Board found that petitioner did not sustain her burden of proving that her injury was the result of an accident, and was therefore entitled only to the lesser benefit of ODR" (Respondents' Memo of Law, at 5). With respect to Lang's April 9, 2010 statement, respondents contend that the Board of Trustees appropriately credited "contemporaneous evidence in the face of self-serving statements submitted after the injury in question" (Respondents' Memo of Law, at 6).
The determination as to whether a retiring or retired police officer is entitled to ADR involves a two-step process (Administrative Code of the City of New York § 13-252; see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760). First, the Medical Board must determine whether or not the applicant is in fact physically or mentally incapacitated for the performance of city-service. If the Medical Board finds that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disability was the natural and proximate result of an accidental injury ( Matter of Borenstein, 88 NY2d at 760). Whether an applicant has the injury claimed and whether that injury constitutes a disability under the public pension statutes are questions solely for the Medical Board, and the Medical Board's determination on these issues is binding on the Board of Trustees ( id., and see Matter of Canfora v Board of Trustees of the Police Pension Fund of Police Dept. of the City of NY, Art. II, 90 AD2d 751, 752 [1st Dept 1982], affd 60 NY2d 347). "The Board of Trustees, while bound by the Medical Board's determination of disability, is entitled to make its own determination regarding causation" ( Matter of Calzerano v Board of Trustees of N.Y. City Police Pension Fund Art. II, 245 AD2d 84, 84 [1st Dept 1997]). The Medical Board's opinion as to causation is advisory and the Board of Trustee may "accept that opinion or reject it and make a contrary finding" ( Matter of Russo v Board of Trustees of the N.Y. City Fire Dept., Art. 1-B Pension Fund, 143 AD2d 674, 676 [2d Dept 1988], citing Matter of City of New York v Schoeck, 294 NY 559). "The function and duty of determining the 'circumstances' of the disqualification and of determining the amount of the allowance as provided by the code is conferred upon the [B]oard of [T]rustees" ( Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 351).
In addition, "the Board of Trustees' determination as to causation may not be disturbed by a court as lacking rational basis or as arbitrary and capricious if it is based on 'substantial evidence,' defined in this context as based on some credible evidence.'" ( Matter of Picciurro v Board of Trustees of N.Y. City Police Pension Fund Art. III, 46 AD3d 346, 348 [1st Dept 2007]). "Credible evidence has been defined as 'evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered' and is 'evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion."' ( Matter of Cusick v Kerik, 305 AD2d 247, 248 [1st Dept 2003] [citation omitted]).
Petitioner bears the burden of establishing that her injury was the result of a service-connected accident ( see, Matter of Danyi v Board of Trustees of New York City Employees' Retirement Sys., 176 AD2d 451 [1st Dept 1991]; Matter of Dryson v Board of Trustees of the Police Pension Fund of City of N.Y., 37 AD2d 378 [1st Dep 1971] affd 32 NY2d 582).
In finding that not every line of duty injury will result in the award of accident disability, the Court of Appeals has distinguished "injuries sustained while performing routine duties but not resulting from unexpected events," which are not accidents, from injuries sustained by "precipitating accidental event[s] . . . which [are] not a risk of the work performed," which are accidents ( Matter of McCambridge v McGuire, 62 NY2d 563, 567-68).
Ordinarily, to overturn a Board of Trustees' determination, a reviewing court must find that the Board of Trustees' "factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious" ( Matter of Russo v Board Of Trustees of the N.Y. City Fire Dept., Article 1-B Pension Fund, 143 AD2d at 676 [2d Dept 1988] citing Matter of Canfora, 60 NY2d at 351; and Fiore v Board of Educ. Retirement System of City of N.Y., 48 AD2d 850, 851 affd 39 NY2d 1016).
However, where as here, the denial of ADR is the result of a six-to-six vote of the Board of Trustees, the determination "can be set aside upon judicial review only if the court concludes that the retiree is entitled to greater benefits as a matter of law." ( Matter of Canfora, 60 NY2d at 352).
Petitioner is entitled to a remand because respondents' submissions indicate that, as a matter of law, the Board of Trustees used an improper standard for determining whether the incident that resulted in Lang's disability was an accident.
Lichtenstein is the only Court of Appeals decision respondents rely upon in arguing that an "accident" is not an accident in the ordinary sense of the word for the purposes of Administrative Code § 13-252, but that a member must establish that the hazard which caused her disability arose suddenly and unexpectedly. The relevant part of Administrative Code § 13-252 states that:
. . . If such medical examination and investigation shows that such member is physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of wilful negligence on the part of such member and that such member should be retired, the medical board shall so certify to the board, . . .
In Lichtenstein, the Court of Appeals adopted what it calls the "commonsense definition" of the word "accident", citing to Johnson Corp v Indemnity Ins. Co. Of North Amer. ( 6 AD2d 97 [1st Dept 1958], aff'd 7 NY2d 222), a case involving a claim for insurance coverage arising from accidental injuries. In both Lichtenstein and Johnson Corp., the court imposed the commonly understood meaning of the word "accident", and rejected more legalistic definitions urged by parties attempting to fit a square peg in a round hole. For example, the petitioner in Lichtenstein had strained his back while leaning over the hood of an automobile in order to place a summons; the Court of Appeals found that he had not sustained his burden to establish that his was an "accidental" injury ( 57 NY2d at 1012). Indeed, the explanation for Lichtenstein's injury is more akin to the risk of performing a police officer's work than an accident ( see McCambridge, 62 NY2d at 567-68). He didn't "accidentally" ticket the vehicle.
Respondents stress that part of the Lichtenstein definition relating to "sudden" and "unexpected" circumstances, urging that there can be no accident if the hazard which caused the injury did not suddenly and unexpectedly appear (Respondents' Memo of Law, 5-10). There is case law from lower courts supporting respondents' argument. For example, in Doyle v Kelly, the Appellate Division, First Department, affirmed a decision that denied a request to vacate a Board of Trustee's determination which refused ADR to an officer who tripped over wires in his office, because it could not be said as a matter of law that his injury was "the result of an accident and not his (a), directing respondents to serve and file all materials related to petitioner's claim. In their opposition papers, respondents have submitted petitioner's medical records and related materials. In her reply papers, petitioner does not allege that the records provided by respondents are, in any way, incomplete. Thus, this issue has been rendered moot.
It hereby is
ORDERED and ADJUDGED that the petition is granted to the extent that the matter is remanded to the Board of Trustees in accordance with the foregoing.