Matter of Brennan v Kelly

Matter of Brennan v Kelly 2013 NY Slip Op 07254 Decided on November 7, 2013 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 November 7, 2013
Sweeny, J.P., Moskowitz, Renwick, DeGrasse, Gische, JJ.
10949 113427/11

[*1]In re Kelly Brennan, Petitioner-Appellant,

v

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




Jeffrey L. Goldberg, Port Washington, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Paul T.
Rephen of counsel), for respondents.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered July 3, 2012, denying the petition to annul respondents' determination, dated August 10, 2011, which denied petitioner's application for World Trade Center accidental disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination that petitioner was not present at the World Trade Center (WTC) site during the requisite time period is supported by credible evidence (see Retirement and Social Security Law § 2[36][a], [e], [f], [g]; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145, 147 [1997]). Respondents' investigation revealed no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that petitioner was present at the WTC site. All respondents' records indicate that petitioner was in Brooklyn during the relevant period. Respondents were entitled to reject petitioner's self-serving affidavit and the affidavits by two fellow officers, which were unsupported by contemporaneous memo book entries or other documentation (see Matter of Velez v Kelly, 84 AD3d 693 [1st Dept 2011]).

Contrary to petitioner's contention, the court did not improperly shift the burden of proof to her. Petitioner was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty, because, by failing to demonstrate that she was present at the WTC site, she failed to demonstrate a qualifying World Trade Center condition as defined by Retirement and Social Security Law § 2(36) (see Administrative Code of City of NY § 13-252.1[1][a]; Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 275 [2012] ["an officer's [*2]disability or death as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site for purposes of benefit upgrades"] [emphasis added]).

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

ENTERED: NOVEMBER 7, 2013

CLERK