Matter of Guerra v Scoppetta

[*1] Matter of Guerra v Scoppetta 2009 NY Slip Op 51990(U) [25 Misc 3d 1207(A)] Decided on September 30, 2009 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 30, 2009
Supreme Court, Kings County

In the Matter of the Application of Anthony Guerra, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules,

against

Nicholas Scoppetta, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, et al., , Respondents.



1372/09



Appearances:

Petitioner

Jeffrey L Goldberg, PC

Lake Success NY

Respondent:

MICHAEL A CARDOZO

Corp Counsel

Jeremy I Huntone, Esq.

NY NY

Arthur M. Schack, J.

Petitioner ANTHONY GUERRA, in this CPLR Article 78 proceeding, seeks a judgment: (1) annulling the determination of respondents, the BOARD OF TRUSTEES of the New York City Fire Department Pension Fund, Subchapter 2, sued as the BOARD OF TRUSTEES of the New York City Fire Department Article 1-B Pension Fund (the BOARD OF TRUSTEES), [*2]NICHOLAS SCOPPETTA, as the Fire Commissioner of the City of New York and as Chairperson of the BOARD OF TRUSTEES, and the CITY OF NEW YORK, which denied him a service-incurred line-of-duty accident disability retirement (ADR), pursuant to Retirement and Social Security Law (RSSL) § 2 (36) and Administrative Code of the City of New York § 13-353.1 (the "World Trade Center" presumption for ADR), and declaring this determination arbitrary, capricious, unreasonable, and unlawful; and, (2) directing and ordering respondents to review his application for ADR. Petitioner, in the alternative, seeks a judgment directing the BOARD OF TRUSTEES to allow him and/or his representatives to present such testimony as is necessary at a hearing held before the BOARD OF TRUSTEES to prove his alleged entitlement to a line-of-duty ADR pension.

Background

Petitioner, born on April 22, 1968, was appointed to the New York City Fire

Department (FDNY) on August 16, 1998 and became a member of the FDNY Pension Fund, Subchapter 2 (FDPF). Petitioner, on September 11, 2001, was a first responder to the World Trade Center disaster. For days thereafter he was assigned to rescue, recovery, and clean-up operations at the World Trade Center site.

On September 15, 2004, Dr. Claudio Martincic wrote a medical summary of petitioner's condition, which stated that petitioner's laboratory blood test in November 2002 showed serum creatinine of 1.9, which demonstrated an overestimation of petitioner's kidney function. Further, Dr. Martincic stated that petitioner had a CT guided kidney biopsy in January 2003, which demonstrated a histology consistent with IgA nephropathy, with mesangial-proliferative and focal sclerosing lesions.

Petitioner, on January 31, 2005, reported to the three-physician FDNY Medical Board Committee (the BHS Committee), composed of physicians from the Fire Department's Bureau of Health Service and chaired by the FDNY's chief medical officer, to determine his duty status. The BHS Committee diagnosed petitioner with chronic glomerulonephritis secondary to IgA nephropathy, and opined that petitioner GUERRA's kidney problem made him unfit for full firefighting duties and recommended that petitioner be placed on light duty.

Fire Commissioner SCOPPETTA endorsed the BHS Committee report, on March 14, 2005, and requested that an application for non-service-incurred ordinary disability retirement (ODR) be submitted on petitioner's behalf. Petitioner submitted to the BOARD OF TRUSTEES an application for ADR.

On the next day, March 15, 2005, the Office of the BOARD OF TRUSTEES sent a memorandum to the Medical Board of the New York City Fire Department Pension Fund, Subchapter 2 (the 1-B Medical Board), to review all of the medical evidence that petitioner GUERRA submitted in support of his ADR application, and to report its conclusions and recommendations. The 1-B Medical Board is composed of private physicians who are not FDNY employees and are specialists in their respective medical fields. They are retained, pursuant to statute, to independently evaluate the eligibility of FDPF members for ADR or ODR.

Petitioner's case was reviewed by the 1-B Medical Board on July 25, 2005. The 1-B Medical Board's report stated that it had reviewed the January 31, 2005-report of the BHS Committee, which found petitioner unfit for full firefighting duties with its diagnosis of petitioner's chronic glomerulonephritis secondary to IgA nephropathy. Further, the 1-B Medical [*3]Board's report stated that it had also reviewed: a Good Samaritan Hospital Medical Center laboratory report, dated September 20, 2004; a report from the office of Dr. Albert M. DeFabritus, written by Dr. Claudio Martincic, dated September 15, 2004; two Medilabs chemistry reports, dated September 14, 2004 and August 22, 2003; a report from Dr. Howard C. Williams, dated April 24, 1998 (which stated that there was a history of hematuria, with the cause not identified); and, petitioner's MD-9 record (petitioner's FDNY medical history and the days that he had lost from work). After reviewing these records, the 1-B Medical Board noted that petitioner had biopsy proven glomerulonephritis with stable chronic renal failure. The 1-B Medical Board concluded that petitioner was disabled from performing full firefighting duties and recommended that petitioner be granted ODR. With respect to petitioner's ADR application, the 1-B Medical Board noted that petitioner had produced a letter suggesting that his glomerulopathy was related to a pulmonary condition. However, the 1-B Medical Board stated that there was insufficient evidence that petitioner had a pulmonary condition that would prevent him from performing full firefighting duties. Thus, the 1-B Medical Board did not recommend that petitioner be granted ADR.

Petitioner, on or about February 25, 2006, filed a Notice of Participation in the World Trade Center Rescue, Recovery or Clean-Up Operations. Although petitioner did not indicate the dates and locations of his World Trade Center service on this notice, his participation for the requisite number of hours (at least 40 hours) at qualifying dates and locations was verified on February 27, 2006. On the same day, February 27, 2006, the FDNY BOARD OF TRUSTEES reviewed petitioner' s case and tabled it until their rules regarding pending applications were resolved. The BOARD OF TRUSTEES, on April 28, 2006, remanded petitioner's case to the 1-B Medical Board.

Petitioner, on or about February 27, 2007, filed another Notice of Participation in the World Trade Center Rescue, Recovery or Clean-Up Operations. On April 4, 2007, petitioner received a letter from the FDNY stating that it had received this notice form and had verified that petitioner had worked a minimum of 40 hours at the World Trade Center disaster site.

At its April 25, 2007 meeting, the BOARD OF TRUSTEES considered the 1-B Medical Board's July 25, 2005 recommendation regarding petitioner's application. Following a brief discussion regarding petitioner's intent to submit a new ADR application under the World Trade Center Disability Law (Administrative Code § 13-353.1), the BOARD OF TRUSTEES deferred voting on petitioner's applications until a future date.

Petitioner, on or about May 16, 2007, submitted a new ADR application, stating that his disabling kidney condition was a qualifying condition under the World Trade Center Disability Law as a "[n]ew onset disease resulting from exposure to toxins" throughout the course of his work during the World Trade Center rescue, recovery, and clean-up operations, specifically "kidney disease resulting from environmental exposure." The BOARD OF TRUSTEES, on May 21, 2007, noted that petitioner had submitted his new ADR application with some additional medical records in support of it. The BOARD OF TRUSTEES remanded petitioner's case back to the 1-B Medical Board for reconsideration in light of the new documentation.

Dr. Stephen Bernhardt, in a letter dated July 18, 2007, stated that the particular type of kidney ailment which petitioner had "may have environmental factors contributing to onset of the disease." Dr. Bernhardt further stated that "[i]t is unclear if environmental toxins, etc. had any [*4]impact on [petitioner's] renal disease (or progression of his disease), but in my opinion may be possible."

The 1-B Medical Board, on July 19, 2007, reviewed petitioner's case on remand from the BOARD OF TRUSTEES and specifically noted that there was an application for ADR under the World Trade Center Disability Law with new onset diseases resulting from exposure. The 1-B Medical Board stated that it reviewed the following: (1) petitioner's World Trade Center application for kidney diseases, dated May 16, 2007; (2) petitioner's verified Notice of Participation, dated February 27, 2007; (3) Dr. Albert M. DeFabritus' report (by Dr. Claudio Martincic), dated September 15, 2004; (4) Good Samaritan Hospital discharge instructions dated January 14, 2003; (5) Dr. Stephen Bernhardt's letter, dated January 13, 2003 (assessing petitioner with chronic renal failure with nephrotic syndrome); and, (6) Dr. Joseph Fisch's letter, dated November 14, 2002 (who evaluated petitioner for hematuria). Further, the 1-B Medical Board stated that it had evaluated the letter from Dr. Stephen Bernhardt, dated July 18, 2007, in which he had stated that it was unclear if environmental toxins had any impact on petitioner's renal disease. The 1-B Medical Board determined, based upon the above documentation, that there was insufficient evidence that petitioner's disability resulted from exposure at the World Trade Center, and, unanimously recommended that petitioner's ADR application, pursuant to the provisions of the World Trade Center Disability Law, be denied. The 1-B Medical Board approved the Fire Commissioner's application for petitioner to be granted ODR.

Petitioner, on September 13, 2007, requested that his case be put on administrative hold for one full year so that he could continue working with his assigned FDNY unit.

In another letter by Dr. Stephen Bernhardt, dated October 29, 2007, Dr. Bernhardt stated that he had been treating petitioner for "IGA nephropathy, a chronic form of kidney disease, for several years. There is documentation in the medical literature linking environmental exposures to this form of kidney failure in certain circumstances. Please take the possible role of environmental factors be taken into consideration when deciding upon Mr. Guerra's case."

Petitioner, on October 29, 2007, submitted another application for a six-month administrative hold. The BOARD OF TRUSTEES granted petitioner this administrative hold and deferred voting on petitioner's ADR application at its October 31, 2007 meeting. On May 20, 2008, the BOARD OF TRUSTEES again deferred voting on petitioner's ADR application. The BOARD OF TRUSTEES, on July 30, 2008, reviewed petitioner's case and deferred voting on petitioner's ADR application until after he had kidney surgery and the medical documentation related to that procedure was made available to it. In a letter, dated September 3, 2008, Elisha Ramos, RPAC wrote that petitioner had received a kidney transplant at Stony Brook University Medical Center on August 12, 2008, and that he would have to take immunosuppressant medications for the rest of his life.

Dr. Frank Darras, in a letter dated September 19, 2008, stated that he had been treating petitioner since August 12, 2008 when he had a kidney transplant for renal failure due to IgA nephropathy and that "[t]here is documentation in the medical literature linking environmental exposures to this form of kidney failure in certain circumstances." Further, Dr. Darras requested that the "possible role of environmental factors" be taken into consideration when deciding upon petitioner's case.

The BOARD OF TRUSTEES, at its September 29, 2008 meeting, considered petitioner's [*5]case for the final time. Following a discussion of petitioner's recent kidney surgery, some of the union representatives sitting on the BOARD OF TRUSTEES requested that petitioner's case be remanded back to the 1-B Medical Board to further address the possibility that petitioner's kidney problems were related to his World Trade Center work. However, because petitioner had not submitted any new medical evidence to demonstrate that his kidney condition was related to his World Trade Center work, the BOARD OF TRUSTEES voted to grant petitioner ODR pursuant to the Fire Commissioner's application which was filed on petitioner's behalf, but denied petitioner's own application for ADR.

Subsequently, on or about January 21, 2009, petitioner commenced this CPLR Article 78 proceeding to challenge the BOARD OF TRUSTEES' determination. Petitioner GUERRA argues that respondents' decision to deny his application for ADR was arbitrary, capricious, unjust, and unlawful, in that respondents abused their discretion by failing to adequately consider all of the evidence and failed to put forth a legally sufficient explanation for their determination. Petitioner further argues that respondents failed to apply or rebut the presumption of the World Trade Center Disability Law (RSSL § 2 (36) and Administrative Code § 13-353.1). Petitioner contends that the Court should annul respondents' determination, and/or remand this matter to respondents to review his application for ADR or, in the alternative, direct the BOARD OF TRUSTEES to hold a hearing for petitioner to prove his entitlement to ADR. Respondents interposed a verified answer to the petition seeking denial of the instant Article 78 petition.

Discussion

In addressing the petition, the court notes that where a firefighter has applied for ADR, he or she must show that he or she is "a member in city-service" who is "physically . . . incapacitated for the performance of city-service, as a natural and proximate result" of an accidental injury received in such city-service. (Administrative Code § 13-353). Generally, the applicant has the burden of proving to the 1-B Medical Board both his or her incapacity and its causal relation to an injury sustained in the line of duty. (See Matter of Evans v City of New York, 145 AD2d 361, 361 [1d Dept 1988]; Matter of Archul v Board of Trustees of NY City Fire Dept., Art. 1B Pension Fund, 93 AD2d 716, 717 [1d Dept 1983], affd 60 NY2d 567 [1983]; Matter of Christian v New York City Employees ' Retirement Sys., 83 AD2d 507, 509 [1d Dept 1981], affd 56 NY2d 841 [1982]).

If the 1-B Medical Board determines the threshold question that the applicant is disabled from the performance of his or her firefighting duties, then it must determine whether the disability is the result of an accidental injury incurred in city-service as claimed by the applicant, and it must make a recommendation to the BOARD OF TRUSTEES, which has the ultimate authority to determine the issue of causation. (Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145-146 [1997]; Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). In the absence of a finding of such causation, a firefighter certified by the 1-B Medical Board as physically or mentally incapacitated for the performance of firefighting duties may be retired by the BOARD OF TRUSTEES with an ODR pension. (Administrative Code § 13-352).

Although the burden of proof with respect to causation usually rests with the ADR applicant, Administrative Code § 13-353.1 (the World Trade Center Disability Law) has carved out a statutory presumption in favor of accidental line-of-duty causation for members of the [*6]FDPF who, like petitioner, worked at World Trade Center sites following the 9/11 attack. Administrative Code § 13-353.1 (1) (a) creates a presumption of accidental disability, stating that "if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty." RSSL § 2 (36) defines "qualifying World Trade Center condition" to include in subsection (c) various "qualifying physical conditions," including various respiratory and pulmonary diseases and "(v) new onset diseases resulting from exposure as such diseases occur in the future including cancer, chronic obstructive pulmonary disease, asbestos-related disease, heavy metal poisoning, musculoskeletal disease." Kidney disease is not listed as a "qualifying physical condition."

However, petitioner GUERRA's first ADR application claimed that his kidney disease was somehow related to an alleged pulmonary condition, which he claimed was work-related. However, there was no medical evidence that petitioner suffered from a pulmonary condition. Dr. Martincic, in his September 15, 2004-report, found normal chest findings during a routine physical examination of petitioner. Furthermore, petitioner actually concedes that there is no medical documentation that a pulmonary condition caused his kidney disease. (Petitioner's reply memorandum of law at 4).

Petitioner, in his second ADR application, also attempted to fall within the qualifying condition of a new onset disease. Petitioner asserted that he was exposed to toxins at the World Trade Center site. However, kidney disease is not among the possible new onset diseases specified in RSSL § 2 (36) (c). Petitioner concedes, in his attorney's memorandum of law (at page 7), that the condition he developed was not a "qualifying condition" under the World Trade Center Disability Law. Thus, upon the instant record, it cannot be said that petitioner has met his initial burden of establishing that he was disabled by a qualifying condition that was caused by his work at the World Trade Center site to invoke the presumption afforded by RSSL § 2 (36) and Administrative Code § 13-353.1. (See Matter of Fernandez v Board of Trustees of NY Fire Dept. Pension Fund Subchapter 2, 23 Misc 3d 1113 [A] [Sup Ct, Kings County 2009]).

Even if the World Trade Center presumption afforded by RSSL § 2 (36) and Administrative Code § 13-353.1 (1) (a) applies, such a presumption is rebutted if there is some credible medical evidence in the record to base the determination that the presumed accidental injury did not cause the disability. (Matter of Jefferson v Kelly, 51 AD3d 536, 536 [1d Dept 2008]; Matter of Mulet v Kelly, 49 AD3d 336, 336 [1d Dept 2008]).

Respondents have shown that there was some credible evidence suggesting that petitioner's GUERRA's kidney disease predated his work at the World Trade Center site. Specifically, the 1-B Medical Board, on July 25, 2005, considered an April 24, 1998-report by Dr. Howard C. Williams, which noted that petitioner had a history of hematuria (the presence of blood or blood cells in the urine). The 1-B Medical Board, on July 19, 2007, later considered Dr. Joseph Fisch's November 14, 2002-letter, in which he noted that (following petitioner's work at the World Trade Center site), petitioner again was diagnosed with hematuria. The 1-B Medical Board also received Dr. Stephen Bernhardt's January 13, 2003-letter, which stated that petitioner's kidney disease appeared well-advanced at that time.

Petitioner, in addressing this evidence, argues that there are other reasons why blood could be found in his urine, other than IgA nephropathy. However, petitioner's arguments are [*7]unavailing. Petitioner's mere speculation as to other causes does not change the fact that respondents could rationally have concluded from the credible evidence that petitioner's kidney disease predated and was unrelated to petitioner's activities at the World Trade Center site.

Petitioner also argues that while Dr. Bernhardt stated that his kidney disease appeared well-advanced by January of 2003, he does not mention how well-advanced it was. This argument is similarly unavailing since respondents could have rationally concluded from this credible evidence that petitioner's kidney disease was unrelated to petitioner's World Trade Center activities.

Petitioner further argues that respondents' determination is irrational because the 1-B Medical Board's conclusion was legally insufficient. Specifically, petitioner asserts that the 1-B Medical Board failed to articulate and discuss its reasoning and the basis for its conclusion, but simply and briefly listed the evidence presented and set forth its opinion that he is disabled by kidney disease that is not related to the World Trade Center disaster. Such arguments are unavailing. "The expert medical opinion of the [1-B] Medical Board with respect to causation can constitute credible evidence sufficient to support the Board of Trustees' determination." (Matter of Flaherty v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 5 AD3d 769, 770 [2d Dept 2004]). (See Matter of Meyer, 90 NY2d at 146; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 90 AD2d 751, 752 [1982], affd 60 NY2d 347 [1983]).

Furthermore, the 1-B Medical Board listed all of the evidence presented to it, showing that it duly considered it. In this evidence, there were no submissions by petitioner of any medical tests, reports, or studies that suggested a possible causal relationship between his World Trade Center work and his kidney disease other than Dr. Stephen Bernhardt's July 18, 2007-letter, in which he generally stated that it "may be possible" that environmental toxins had an impact on his renal disease or progression of his disease. Dr. Bernhardt, however, did not express this opinion to a notable degree of medical certainty and failed to discuss the basis for his opinion. Moreover, Dr. Bernhardt admitted that "it was unclear" if such environmental toxins, etc. had any such impact on petitioner's kidney disease. Dr. Bernhardt's opinion was tentative and unsupported.

Likewise, Dr. Bernhardt's October 29, 2007-letter and Dr. Darras' September 19, 2008-letter, which were submitted to the BOARD OF TRUSTEES, both merely generally stated that there was documentation in the medical literature linking environmental exposures to this form of kidney failure "in certain circumstances" and that environmental factors may have played a "possible role" in petitioner's condition. These letters did not contain opinions with any degree of medical certainty or set forth the basis for these opinions with any specificity.

Petitioner points out that it has been held that if a line-of-duty injury either precipitates the development of a latent condition or aggravates a preexisting condition, resulting in a disability, the disabled member is entitled to ADR. (See Matter of Tobin v Steisel, 64 NY2d 254, 259 [1985]). Petitioner argues that even if he did have underlying precursors to his IgA nephropathy, it did not disable him until after he was exposed to the toxins at the World Trade Center site. However, such argument is unavailing as there was insufficient credible evidence before the respondents linking the exposure of toxins at the World Trade Center to either the development or the exacerbation of petitioner's kidney disease. Furthermore, by finding that [*8]petitioner's service at the World Trade Center site did not cause his disability, the 1-B Medical Board implicitly rejected the possibility that petitioner's condition resulted from the aggravation of a pre-existing kidney condition. (See Matter of Ryan v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 247 AD2d 480, 481 [2d Dept 1998]).

Petitioner argues that despite the 1-B Medical Board listing all of the records that were considered, its conclusion was irrational and defied logic and common sense. This argument is rejected. The 1-B Medical Board reviewed the medical evidence and its opinion was based on the credible evidence before it, which reasonably tended to support the conclusion of a lack of causation between petitioner's kidney disease and his activities at the World Trade Center. (Matter of Ocasio v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 15 AD3d 404, 405 [2d Dept 2005]; Matter of Flaherty, 5 AD3d at 770; Matter of Cannella v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 258 AD2d 521, 521 [2d Dept 1999]). Additionally, the absence of any unequivocal evidence in the letters from petitioner's treating physicians left room for the 1-B Medical Board to exercise its own expertise in drawing its conclusion on the question of causation. (Matter of Jefferson v Kelly, 14 Misc 3d 191,197 [Sup Ct, New York County 2006], affd 51 AD3d 536 [2008]).

Petitioner also contends that the BOARD OF TRUSTEES abdicated its responsibility by not considering all of the evidence and not reaching its own determination independent from the 1-B Medical Board. This contention lacks merit. The 1-B Medical Board's report constituted expert medical opinion based on evidentiary proof reasonably tending to support the conclusion of a lack of causation between petitioner's work at the World Trade Center site and his disabling kidney condition. "It is neither arbitrary nor capricious for the Board of Trustees to rely upon the [1-B] Medical Board's conclusion that disability is not causally connected to an individual's line-of-duty injuries" (Matter of Ryan, 247 AD2d at 481). (See Matter of Meyer, 90 NY2d at 146; Matter of Carbone v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 242 AD2d 530, 531 [2d Dept 1997]; Matter of Canfora, 90 AD2d at 752). Also, the September 28, 2008 minutes of the BOARD OF TRUSTEES' meeting discloses that the BOARD OF TRUSTEES considered all of the evidence presented to it.

Respondents' determination must be upheld unless "wholly irrational," and the "[c]ourts cannot weigh the medical evidence or substitute their own judgment for that of the [1-B] Medical Board." (Matter of Appleby v Herkommer , 165 AD2d 727, 728 [1d Dept 1990]). (See Matter of Santoro v Board of Trustees of NY City Fire Dept. Art. 1-B Pension Fund, 217 AD2d 660, 660 [2d Dept 1995]; Matter of Whitton v Spinnato, 143 AD2d 274, 275 [2d Dept 1988]). "Where the medical evidence is equivocal on the issue of causation, then a petitioner has failed to meet his burden of proof." (Deichler v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 257 AD2d 574, 575 [2d Dept 1999]). (See Matter of Petchonka v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 204 AD2d 646, 646 [2d Dept 1994]; Matter of Draves v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 203 AD2d 568, 569 [2d Dept 1994]; Matter of Hodges v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 203 AD2d 365, 366 [2d Dept 1994]; Matter of Flynn v Board of Trustees of NY City Fire Dept., 201 AD2d 730, 730 [2d Dept 1994]; Matter of Nicolosi v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 198 AD2d 282, 283 [2d Dept 1993]).

Where an application for ADR is denied and the lesser ODR benefits are awarded, a [*9]reviewing court may not set aside the Board of Trustees' denial of ADR unless " it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.'" (Matter of Meyer, 90 NY2d at 145, quoting Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art II, 60 NY2d 347, 352 [1983]). Petitioner GUERRA has failed to show as a matter of law that his disability was the result of a service-related injury. (See Matter of Meyer, 90 NY2d at 149; Matter of Ocasio , 15 AD3d at 405).

"So long as there is any credible evidence that the disability was not caused by the service-related injuries, the determination of the [Board of] Trustees must stand." (Matter of Ryan, 247 AD2d at 480-481). (See Matter of Meyer, 90 NY2d at 145; Matter of Flaherty, 5 AD3d at 770; Matter of Carbone, 242 AD2d at 531). The evidence in the instant case, including petitioner's medical records and the 1-B Medical Board's review of those records, constitutes sufficient credible evidence to support respondents' rational determination that petitioner 's disabling kidney disease was not work-related. Given the credible medical evidence in the record that petitioner's kidney disease did not result from his exposure at the World Trade Center site, the BOARD OF TRUSTEES' denial of ADR to petitioner GUERRA had a rational basis (see Matter of Lahm v Bloomberg, 29 AD3d 461, 462 [1d Dept 2006]).

Thus, even assuming the World Trade Center presumption (RSSL § 2 [36] and Administrative Code § 13-353.1 [1] [a]) applies, credible evidence rebuts the presumption and supports the 1-B Medical Board's determination that petitioner's disability was not the natural and proximate result of a line-of-duty accident. (See Matter of Meyer, 90 NY2d at 145; Matter of Jefferson, 51 AD3d at 537; Matter of Mulet, 49 AD3d at 336). With the challenged determination rationally based, and not arbitrary, capricious, an abuse of discretion, or contrary to law, and the record before the Court does not support, as a matter of law, petitioner's theory of causation, the court is obliged to uphold respondents' determination. (Matter of Jefferson, 51 AD3d at 537; Matter of Mulet, 49 AD3d at 336).

Petitioner additionally requests that the court direct respondents to further review his ADR application. Given that respondents' determination is supported by credible evidence, this court lacks the discretion to remand this matter to respondents for further consideration. (See Matter of Serrano v Kelly, 14 Misc 3d 1203 [A] [Sup Ct, New York County 2006]).

Petitioner also requests in the alternative that the Court direct that the BOARD OF TRUSTEES allow him and/or his representatives to present testimony at a hearing to be held before it to prove his entitlement to ADR. Petitioner, however, has not demonstrated any right to such relief or any basis which would warrant such relief. The written submissions previously presented by petitioner to the BOARD OF TRUSTEES were sufficient to satisfy due process requirements (See Basciano v Herkimer, 605 F2d 605, 610-611 [2d Cir 1978], cert denied 442 US 929 [1979]; Flannelly v Board of Trustees of NY City Police Pension Fund, Art. II, 6 F Supp 2d 266, 268 [SD NY 1998]).

Conclusion

Accordingly, it is

ORDERED that the CPLR Article 78 petition of ANTHONY GUERRA is denied in its entirety and is dismissed. [*10]

This constitutes the Decision and Order of the Court.

E N T E R

___________________________ HON. ARTHUR M. SCHACK

J. S. C.