Opinion
Argued May 23, 2000
August 30, 2000.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund, dated July 20, 1995, denying the petitioner's application for an accident disability pension and awarding him ordinary disability, the appeal is from a judgment of the Supreme Court, Kings County (Vaughan, J.), dated December 10, 1998, which denied the petition and dismissed the proceeding.
Barasch McGarry, P.C., New York, N.Y. (James P. McGarry and Stephen Jacobson of counsel), for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Magda Deconinck, and Cheryl Payer of counsel), for respondents.
CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund (hereinafter the Board) denies an application for accidental disability benefits as a consequence of a tie vote, the Board's determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner's disability was the natural and proximate result of a service-related injury (see, Matter of Meyer v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 144-145; Matter of Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 N.Y.2d 347; Matter of Deichler v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 257 A.D.2d 574). If there is any credible evidence that the disability was not caused by service-related injuries, the Board's determination must stand (see, Matter of Meyer v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, supra). Only where the circumstances allow but one inference may the court decide as a matter of law what inference should be drawn (see, Matter of Rivera v. New York City Fire Dept., 232 A.D.2d 420; Matter of Radigan v. O'Connell, 304 N.Y. 396, 397; Matter of Hodges v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 203 A.D.2d 365).
Applying these principles, the petitioner failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition (see, Matter of Wesarg v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 246 A.D.2d 601; Matter of Fagan v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 185 A.D.2d 341). Accordingly, there is no basis to disturb the Board's determination.