Opinion
16882 Index No. 157113/21 Case No. 2022–00387
12-20-2022
In the Matter of Carmen RIVERA, Petitioner–Appellant, v. Dermot F. SHEA, etc., et al., Respondents–Respondents.
Seelig Law Offices, LLC, New York (Philip H. Seelig of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Benjamin H. Pollak of counsel), for respondents.
Seelig Law Offices, LLC, New York (Philip H. Seelig of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Benjamin H. Pollak of counsel), for respondents.
Webber, J.P., Friedman, Gonza´lez, Mendez, JJ.
Judgment (denominated an order), Supreme Court, New York County (Lyle E. Frank, J.), entered January 12, 2022, denying the petition to annul a determination of respondent The Board of Trustees of the New York City Police Pension Fund, dated April 14, 2021, which denied petitioner's application for accidental disability retirement (ADR) benefits, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
While en route to a special assignment at One Police Plaza, petitioner was struck by a chain link fence which pinned her to a concrete barrier. As a result, petitioner sustained injuries to her neck, head, upper, middle and lower back, right leg, right shoulder, right elbow, right wrist and hand. Respondent, the Board of Trustees rejected petitioners application for ADR benefits, finding that petitioner's injuries did not occur while she was in city-service.
The Board of Trustees determination that despite petitioner's receipt of "portal to portal" compensation under Article XX 2(a) of the Collective Bargaining Agreement between the Police Benevolent Association and the City, her injuries did not occur in the course of city-service (see Administrative Code of City of N.Y. § 13–252), was rational and supported by credible evidence (see generally Matter of Meyer v. Board of Trustees of 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] ). Deference is to be accorded the Board of Trustees’ determination that portal to portal time is excluded from city-service under Administrative Code § 13–252 (see Matter of Crowley v. Brown, 202 A.D.2d 328, 328, 609 N.Y.S.2d 11 [1st Dept. 1994] ).
The record established that the Board of Trustees discussed and rejected a 2006 decision in which it had granted ADR benefits to another officer in a purportedly similar situation concluding that it was not controlling and that cases such as these are nuanced and fact and situationally specific. The Board's refusal to award plaintiff ADR benefits as it did in the 2006 case was not arbitrary and capricious. It is unclear if the 2006 case was factually the same as petitioner's and, in any event, the Board of Trustees may correct a prior erroneous interpretation of the law where appropriate (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 518–519, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] ).
We have considered petitioner's remaining arguments and find them unavailing.