Matter of Tubridy v New York City Fire Dept.
2003 NY Slip Op 19153 [2 AD3d 451]
December 1, 2003
Appellate Division, Second Department
As corrected through
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 25, 2004
Matter of Timothy Tubridy v New York City Fire Department
In the Matter of Timothy Tubridy, Appellant,
New York City Fire Department et al., Respondents.
— In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund, dated June 1, 2001, which awarded the petitioner ordinary disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Rappaport, J.), dated June 11, 2002, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner received ordinary disability retirement benefits, rather than the accident disability retirement benefits which he requested, as a consequence of a tie vote by the members of the respondent Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund (see Matter of Canfora v Board of Trustees, 60 NY2d 347 ). Under such circumstances, the denial of accident disability retirement benefits may only be disturbed if it can be concluded as a matter of law from the record that the petitioner is entitled to those benefits (see Matter of Canfora v Board of Trustees, supra). As the respondents correctly contend, there was competent and credible medical evidence demonstrating that the petitioner's cardiomyopathy was not accompanied by any underlying stress-related heart disease or coronary artery disease. Given the existence of such medical evidence, it cannot be said as a matter of law that the petitioner should have been awarded accident disability retirement benefits (see Matter of Sweetman v Board of Trustees, 232 AD2d 647 ). Smith, J.P., McGinity, Luciano and Townes, JJ., concur.