Matter of Zaborowski v Kelly

Matter of Matter of Zaborowski v Kelly 2012 NY Slip Op 01629 Decided on March 6, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 6, 2012
Mazzarelli, J.P., Friedman, Acosta, Freedman, Abdus-Salaam, JJ.
6981 115489/09

[*1]In re John Zaborowski, Petitioner-Appellant,

v

Raymond Kelly, etc., et al., Respondents-Respondents.




Jeffrey L. Goldberg, P.C., Lake Success (Jeffrey L. Goldberg of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Keith M.
Snow of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 17, 2010, denying the petition to annul respondents' denial of accidental disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The determination was not arbitrary and capricious, an abuse of discretion or contrary to law. Credible evidence, including petitioner's medical records, supports the Medical Board's finding that petitioner's ventricular tachycardia was not caused by hypertension or any other stress-related condition, and rebuts the statutory presumption that petitioner's disabling
heart condition is job-related (see General Municipal Law § 207-k; see Matter of McNamara v Kelly, 32 AD3d 747 [2006], lv denied 8 NY3d 810 [2007]). The Board of Trustees was entitled to rely on the Medical Board's findings (see Matter of Borenstein v New
York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 6, 2012

CLERK