Opinion
July 7, 1994
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
The IAS Court correctly held that the Board of Trustees was not bound by the Medical Board's revised determination that petitioner's disabling back condition was the result of his having tripped over a sidewalk depression while carrying certain police records on foot in the line of duty. Where, as here, the decision to deny accidental disability benefits and to grant ordinary disability benefits is reached in consequence of a 6 to 6 tie vote, the denial of accidental disability benefits can be set aside on judicial review only if it can be concluded that the retiree is entitled to greater benefits as a matter of law (Matter of Canfora v. Board of Trustees, 60 N.Y.2d 347, 351-352). In view of the evidence of petitioner's preexisting back condition, and the divergent account of the occurrence petitioner gave to his doctor of his ankle giving way for no apparent reason, which was supported by a recent earlier report of just such an episode, it cannot be said that petitioner was entitled to the greater disability benefits as a matter of law (see, Matter of Danyi v. Board of Trustees, 176 A.D.2d 451; Matter of Hallihan v. Ward, 169 A.D.2d 542).
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.