Matter of Hutnik v Kelly

Matter of Hutnik v Kelly 2007 NY Slip Op 01479 [37 AD3d 346] February 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

In the Matter of John Hutnik, Appellant,
v
Raymond Kelly, as Police Commissioner of the City of New York, et al., Respondents.

—[*1] Jeffrey L. Goldberg, P.C., Lake Success (Chester P. Lukaszewski of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered September 28, 2005, which denied petitioner's police officer's application to annul the determination of respondent Board of Trustees denying petitioner accident disability retirement benefits, and dismissed the petition, unanimously affirmed, without costs.

The statutory presumption in petitioner's favor that his cardiomyopathy is service related (General Municipal Law § 207-k) was rebutted by credible evidence that petitioner, contrary to the opinion of his doctor, does not suffer from hypertension, and the absence of any evidence, or indeed claim, of any other possible cause for the condition (see Matter of Vallas v Safir, 304 AD2d 353 [2003]; Matter of Seldon v Kelly, 21 AD3d 840 [2005]). Concur—Andrias, J.P., Sullivan, Williams, Sweeny and Malone, JJ.