Matter of Hogg v Kelly

Matter of Matter of Hogg v Kelly 2012 NY Slip Op 01872 Decided on March 15, 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 15, 2012
Mazzarelli, J.P., Friedman, Richter, Abdus-Salaam, JJ.
7109 112839/09

[*1]In re Daniel Hogg, Petitioner-Appellant,

v

Raymond Kelly, as Police Commissioner of the City of New York, 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 (Joan B. Lobis, J.), entered May 10, 2010, denying the petition seeking, inter alia, to annul a determination of respondent Board of Trustees, which denied petitioner's application for accidental disability retirement benefits and granted him ordinary disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The determination that petitioner's condition was not incurred in the line of duty had a rational basis. The evidence included the opinion of petitioner's treating cardiologist that petitioner's stroke was "associated with" congenital heart defects which made a "presumptive diagnosis of paradoxical embolism a leading explanation for his stroke." Such evidence sufficed to rebut the statutory presumption set forth in General Municipal Law § 207-k (see Matter of Higgins v Kelly, 84 AD3d 520 [2011], lv denied __ NY3d __, 2012 NY Slip Op 63959 [2012]; Matter of Simmons v Herkommer, 98 AD2d 651, 652 [1983], affd 62 NY2d 711 [1984]). Moreover, the opinion of petitioner's treating vascular neurologist, who opposed the determination that the stroke was related to petitioner's heart defects, was that the stroke was of unknown origin. A finding of unknown origin itself rebuts the statutory presumption that the [*2]disabling condition was incurred in the line of duty (see Matter of Goldman v McGuire, 101 AD2d 768, 769 [1984], affd 64 NY2d 1041 [1985]; see also Matter of Gumbrecht v McGuire, 117 AD2d 531, 533 [1986]).

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

ENTERED: MARCH 15, 2012

CLERK