Matter of Diaz v Kelly

Matter of Matter of Diaz v Kelly 2012 NY Slip Op 02945 Decided on April 19, 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 April 19, 2012
Gonzalez, P.J., Saxe, Sweeny, Acosta, Renwick, JJ.
7424 105924/10

[*1]In re Joel Diaz, Petitioner-Respondent,

v

Raymond W. Kelly, as Police Commissioner of the City of New York, etc., et al., Respondents-Appellants.




Michael A. Cardozo, Corporation Counsel, New York (Inga
Van Eysden of counsel), for appellants.
Law Offices of Chet Lukaszewski, P.C., Lake Success (Chet
Lukaszewski of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered January 13, 2011, which granted the petition to annul respondents' determination denying petitioner's request to amend his application for accidental disability retirement (ADR) benefits, and remanded the matter with the direction that petitioner be allowed to amend his application to include a heart-related disability, unanimously affirmed, without costs.

The Board's determination was arbitrary and capricious and an abuse of discretion (see CPLR 7803[3]). At the time respondent Board of Trustees denied petitioner's application for ADR benefits based on an orthopedic condition, a member of the Board was aware that petitioner had suffered a heart attack, was incapacitated, and might wish to amend his application to include a claim under the Heart Bill. Moreover, there is evidence in the record that petitioner's heart condition predated his retirement, but was not diagnosed until after he retired (see Matter of Mulheren v Board of Trustees of Police Pension Fund, Art. II, 307 AD2d 129 [2003], lv denied 100 NY2d 515 [2003]).

We have considered respondents' remaining contentions and find them unavailing.

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

ENTERED: APRIL 19, 2012

CLERK