Matter of Savallo v Kelly

Matter of Savallo v Kelly 2012 NY Slip Op 09185 Decided on December 27, 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 December 27, 2012
Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
8921 107987/10

[*1]In re Michael Savallo, Petitioner-Appellant,

v

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




Jeffrey L. Goldberg, Port Washington, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Keith M
Snow of counsel), for respondents.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered February 15, 2011, denying the petition to annul respondents' denial of accidental disability retirement (ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The Board of Trustees denied petitioner's application for ADR benefits based on a tie vote, upon a court-ordered remand in a prior proceeding. Petitioner fails to establish, as a matter of law, that his disability was the natural and proximate result of a service-related accident" (Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 352 [1983]). The evidence shows that petitioner's back injury was caused by an incident in 2003, in which he was moving a table to prepare for a police training course. Such injury caused by exertion in lifting a heavy object was a risk of the work performed, and did not result from a sudden, unexpected event (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; Matter of Valentin v Board of Trustees of N.Y. City Employees' Retirement Sys., 91 AD2d 916 [1st Dept 1983], affd 59 NY2d 702 [1983]).

Contrary to petitioner's contention, the Board of Trustees did not fail to comply with the aforementioned remand. The prior order remanding the matter directed the Medical Board to determine whether petitioner's disability was caused by a prior incident in 1996, and further directed that if the Medical Board answered that question in the affirmative, the Board of Trustees was required to determine whether the 1996 incident was a service-related accident [*2]causing the disability. However, the Medical Board answered the question in the negative, and thus, the Board of Trustees was not required to consider the 1996 incident upon remand.

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

ENTERED: DECEMBER 27, 2012

CLERK