Opinion
12-28-2023
In the Matter of Thomas PEPE, Petitioner–Appellant, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Respondents–Respondents.
Stewart Lee Karlin Law Group P.C., New York (Natalia Kapitonova of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Stewart Lee Karlin Law Group P.C., New York (Natalia Kapitonova of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Manzanet–Daniels, J.P., Webber, Friedman, Shulman, Rosado, JJ.
Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about October 24, 2022, denying the petition to annul respondent’s determination, dated October 8, 2020, which denied petitioner’s application for accidental disability retirement (ADR) and ordinary disability retirement (ODR), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
[1, 2] Petitioner has failed to show that respondents’ determination to deny his applications for ADR and ODR was arbitrary and capricious or in violation of lawful procedure. The Medical Board was entitled to rely on its own review of petitioner’s medical records, including December 2013 and March 2016 MRI reports of his knee and back, as well as its own examination of petitioner, all of which provided some credible evidence supporting the Board’s finding that petitioner’s conditions were not causally related to the October 10, 2013 incident in which petitioner claims he was injured (see Meyer v. Board of Trustees of the 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]; Borenstein v. New York City Empls. Retirement Sys., 88 N.Y.2d 756, 760, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996]). Furthermore, resolution of conflicting evidence was for the Medical Board (see Matter of DeMeo v. Teachers Retirement Sys. of the City of N.Y., 180 A.D.3d 560, 561, 121 N.Y.S.3d 6 [1st Dept. 2020]).
[3] We reject petitioner’s contention that the Medical Board was biased against him because it referred to a letter from petitioner’s school principal in which the principal opined as to the extent of petitioner’s injuries. The Medical Board provided a lengthy and fact specific recitation of the reasons for its determination, and its mention of the principal’s letter was not dispositive. Furthermore, a mere allegation of bias is insufficient, and petitioner did not provide a factual demonstration to support his claim and proof that the outcome was tainted by bias (see James v. National Arts Club, 99 A.D.3d 523, 525–526, 952 N.Y.S.2d 158 [1st Dept. 2012], lv dismissed 21 N.Y.3d 886, 965 N.Y.S.2d 778, 988 N.E.2d 515 [2013]). We have considered petitioner’s remaining arguments and find them unavailing.