Matter of Igneri v Kelly

Matter of Igneri v Kelly 2007 NY Slip Op 08005 [44 AD3d 548] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of Patrick Igneri, Appellant,
v
Raymond Kelly, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund Article II, 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 City (Ellen Ravitch of counsel), for respondents.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered May 8, 2006, which denied petitioner police officer's application to annul respondents' determination denying petitioner accident disability retirement (ADR) benefits by virtue of a tie vote of respondent Board of Trustees, and dismissed the petition, unanimously affirmed, without costs.

It cannot be determined as a matter of law on the record that the disabling arthritic condition to petitioner's right knee was the natural and proximate result of the 1983 gunshot wound to his right thigh (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139 [1997]). All of petitioner's various theories of causation are refuted by some credible evidence of lack of causation (see id.). For example, petitioner proffered that the damage to his right thigh caused him to alter his gait and kept him from exercising, resulting in the weight gain that the Medical Board believes heavily contributed to the arthritis. But the Medical Board countered that its examination of petitioner in connection with his 1985 ADR application based on the gunshot injury revealed full functional recovery of the thigh with the exception of some decreased sensation. There was no atrophy or motor problems noted, i.e., no indication of a change in gait or other cause for increased weight gain due to an inability to exercise. Similarly tending to refute the claimed causal connection between the claimed gunshot-related change in gait and the disabling right-knee arthritis was petitioner's admission, at the Medical Board's final physical examination, that 10 years prior, i.e., around 1994, over 10 years after the gunshot injury, he weighed around 100 pounds less and was very active athletically. Furthermore, the bullet missed the knee and X rays and surgery revealed no bullet or bone fragments in the knee. While petitioner's doctor noted no other cause for the arthritis, the Medical Board pointed not only to petitioner's weight but also to evidence that he was now displaying symptoms of arthritis in his left knee. That the Police Department paid for petitioner's medical treatment for the [*2]knee is not evidence that the condition of the knee is service related. Concur—Tom, J.P., Saxe, Nardelli, Sweeny and Catterson, JJ.