Opinion
13367 Index No. 655932/18 Case No. 2020-02012
03-16-2021
Stewart Lee Karlin Law Group, P.C., New York ( Stewart Lee Karlin of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Stewart Lee Karlin Law Group, P.C., New York ( Stewart Lee Karlin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about September 26, 2019, which denied the petition to annul a medical arbitration determination, dated September 14, 2018, sustaining the partial denial of petitioner's application for line of duty injury (LODI) leave, and granted respondents' cross motion to dismiss the proceeding brought pursuant to CPLR articles 75 and 78, unanimously affirmed, without costs.
Since respondent medical arbitrator complied with the LODI review provisions of the collective bargaining agreement between respondent union, of which petitioner is a member, and respondent Department of Education (DOE) ( see CPLR 7506 ), petitioner failed to demonstrate a violation of due process. Petitioner waived any objection to the process by participating fully in the review ( CPLR 7506[f] ). The arbitrator's determination was not arbitrary and capricious, but was rational and supported by adequate evidence, namely, petitioner's medical history ( see Lackow v. Department of Educ. [or "Board"] of City of N.Y., 51 A.D.3d 563, 567, 859 N.Y.S.2d 52 [1st Dept. 2008] ).
To the extent this proceeding is more appropriately reviewed under CPLR article 78, we find that the determination was rationally based on the medical evidence before the arbitrator ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; see also Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760–761, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ).
We have considered petitioner's remaining contentions and find them unavailing.