Opinion
No. 15987 Index No. 161792/19 Case No. 2021-03351
05-24-2022
In the Matter of Juan Soto, Petitioner-Appellant, v. Dermot F. Shea etc., et al., Respondents-Respondents.
Goldberg & McEnaney, LLC, Port Washington (Timothy McEnaney of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Claibourne Henry of counsel), for respondents.
Goldberg & McEnaney, LLC, Port Washington (Timothy McEnaney of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Claibourne Henry of counsel), for respondents.
Before: Renwick, J.P., Friedman, Gesmer, Mendez, Higgitt, JJ.
Judgment, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about February 26, 2021, denying the petition to annul the determination of respondent Board of Trustees of the Police Pension Fund, dated August 14, 2019, which denied petitioner accident disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination of the Medical Board of the Police Pension Fund that petitioner's disability was caused by his November 2012 line-of-duty (LOD) incident, rather than his January 2016 LOD incident, is supported by credible evidence (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 144-145 [1997]; Matter of Guzman v Safir, 293 A.D.2d 281 [1st Dept 2002], lv denied 98 N.Y.2d 614 [2002]). Petitioner's medical records, including his treating surgeon's notes following both incidents, show that petitioner sustained a devastating injury to his right elbow when he slipped and fell at the precinct in November 2012 and that his complaints of numbness and tingling in his right elbow predated the January 2016 LOD incident by two years (see Matter of MacPherson v Kelly, 95 A.D.3d 570 [1st Dept 2012], lv denied 20 N.Y.3d 855 [2013]).
Credible evidence also supports the conclusion of the Board of Trustees that the November 2012 LOD incident was not an accident within the meaning of the Administrative Code (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012 [1982]; Matter of Henriquez v Kelly, 116 A.D.3d 486 [1st Dept 2014]).