Kiess v Kelly

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Kiess v Kelly 2009 NY Slip Op 33269(U) March 19, 2009 Sup Ct, NY County Docket Number: 112221/08 Judge: Jane S. Solomon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCA.NN=D [* 1] mJ 3/20120C9 SUPREME COURT-Of THE STATE OF NEW YORK COUNTY OF NEW YORK: lAS PART 55 ----_.~-----~-~---~~----_.------------~.--------~---------- ------------){ , In the Matter: ofthe, Application of , i I JOSHUA KIESS, ' , Petitioner, For a Judgment under;Article 78 of the Civil Practice Law ~d Rwes, ' , -against- Index No. 112221/08 DECISION AND ~'\~ JUDGMENI , RAYMOND KELLY, as the Police Commissioner of the ~'t', City ofN~w York, JUl~ as Chairman of the Board OfTru~~~~. ofthe Police Pension Funo, Article II, THE BOARD OF 'T~~~ (I,...~~~ TRUSTE,ES of the Police PensiOll Fund, Article IT, NEW' ~ .. c' r~~~,'\ i.~ YORK C1TY POLlCE DEPARTMENT and TIm CIIT OF ....;4,ft:~.'·~~~~..,~, y NEW YORK, ; l . .,"6; t,,,,,,,Ii", 1·, .} ..;-..-,?~ .... <; .. ! "':' ~<:;,) , . I ---------_.--:._------;.._-------------------~~~~~~~~-------------){ MNES.SOLOMON,J.: . .'0 ,"",...... ~"",t.iJ'. ' ¢ ¢ " . , . Ii:". ~'~~~~ ~~~ .~, petitioner Joshua Kiess (petitioner) brings this Article 78 proceeding /S·,~) judgment reviewing and annulling the action of the respondents herein denying petitioner a line of duty accident disability retirement allowance, pursuant to the Administrative Code of the City ,of New York §, 13-252, and declaring said action to be arbitrary, capricious, unreasonable and , ' unlawful; and directing ~nd ordering the respondents to retire petitioner with a line of duty accident disability retirement allowance; and directing that the Board of Trustees of the Police I Department Article II Pension Fund allow petitioner and/or his representatives to present such I testimony as is necessary at a hearing held before the Board of Trustees in order to prove his , entitlement to an accident disability retirement. On January 20, 2004, the petitioner was appointed a New York City police officer. I On November 24, 2006, the petitioner was driving a police vehicle, responding to an emergency [* 2] , , ; situation., when it was struck in the driver':; door by a taxicab. The petitioner was treated. for , , back and !\nee inj~ies,and released from the hospital. Between the date of the collision, and , May 2007, the petitioner undeIWent a series of diagnostic films including x-rays, MRIs and a I', ' ,r disco gram of his spine.and received treatment for back pain. On May 25, 2007, the petitioner submitted an application for accident disability II I retiremont, claiming back injuries. At the Police Commissioner's request, an application for , ~ ' I' otdinary disability retirement alGo was submitted. ; Ii On July 10,2007, the Medical Board considered both applications, and found, I unanimously, that based on its "review of the history, the clinical findings, the present ¢omplaints, and th~ physical examination, it is the opinion ofthe members of the Article n " ) 1 , Medical Board that there \lIe no significant objective findings precluding the officer from performing the full duties of a New York City Police Officer" (Medical Board minutes, Ex. L to Petition, paragraph 13). 1be petitioner continued to be treated for back pain. On January 29, 2008, in light of new evidence, the Medical Board again examined both the petitioner and the materials presented to it. The'Medical Board looked at the new evidence, physically re-examined the petitioner, and foun~ a lack of objective findings to support petitioner's claimed inability to , perform his filll duties. The Medical Board once again recommended the denial of both applications. ' ., the petitioner subsequently resigned from his position as a police officer. On May 14,2008, the Board of Trustees reviewed petitioner's case, concurred with the Medical Board's findings, and denied the applications for a disability pension. , , The petitioner argues that the action of the Board of Trustees failed to use the 2 , " [* 3] I .... r' ., , I I proper legal test, was contrary to the competent evidence, and failed to accord him a fair and reasonable hearing ¢ . J . In opposition to the petition, the respondents argue that credible medical evidence ,supports both the Medical Board's, and Board of Trustees' decisions. ,I Judicial review of the determination of a body or officer is limited to whether the I , II,' detennination was made "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or ~ abuse of discretion" (CPLR 7803 [3]). Therefore, a court may not , ' . substitute its judgment for that of an administrative agency when there is a rational basis for the " 1,1 .', agency's detennination (Matter ofNehorayoffv Mills, 95 NY2d 671 [2001]). The Board of Trustees ofthe Police Pension Fund is bound by its Medical Board's detezmination as to whether , I I an applicant is di,sabled (Matter ofBorenstein v New York City Employees' Retirement Sys., 88 NY2d 756,760 [1996]). The Medical Board's determination is conclusive ifit is supported by some credible evidence and is not irrational (td. at 761) Here, the Medical Board porformed two physical examinations of the petitioner, and considered aU of the medical evidence submitted, including the diagnostic film reports. Contrary to the petitioner's contention, the Medical Board. on the two occasions that it , ,considered the petitioner's case, made an evidentiary-based decision explaining its rationale. It was the Medical Board's expert opinion, based on the medical records. the clinical findings, the , present complaints, and the physical examinations, that the petitioner's injuries do not disable him from perf9rming his duties as a police officer (Matter ofMeyer v Board of Trustees ofN. y. City Fire Dept., Art. l-B Pension Fund, 90 NY2d 139 [1997]). I: "The court cannot weigh the medical evidence and substitute its own judgment for , , 3 , I [* 4] ' " I ' " '.1 , th~ of the Medical; Board" (Matter ofCampbell v Board ofTrustees 0/NY. City Fire Dept., Art. . I ' , I-B Pension Fund, 47 AD3d 926, 928 [2d Dept 2008]). Based on the credible evidence before the Medical aoard, physical examinations and the imaging reports, the detennination of the , , , ~ I Board of trustees that the petitioner's back injuries do not disable him from performing his , :)J " duties as a police officer, is neither arbitrary nor irrational (Matter ofRamsey v City ofNew York, 8AD3d 392 '[2d ,Dept 2004];. Matter a/Toole v Board ofTrustees ofN Y. City Police Pension ' Fund, 306 .AP2d 55 [ht Dept 2003]; Matter ofMorris v New York City Employees Retirement I ~ I, L Sys. 309 AD2d 526 [l,st Dept 2003]). Although the medical conclusions of the petitioner's physicians differed from those ofthe Me~ical Board, the resolution of such conflicts is within the sole province of the I, I Medical Board (Matter a/Tobin v Steisel, 64 NY2d 254 [1985]). Furthermore, the Medical 1'1 Board was not requir~d to accept the opinion of petitioner's examining physicians (Matter of Meehan v Kelly.' 50 AD3d 523 [1st Dept 2008]). While the opinions of petitioner's experts may have SURPorted conclusions at v~riance with those reached by the Board, the latter's resolution of .;the conflicting medi~al evidence cannot be said to have been erroneous as a matter oflaw 1'1 VJatter ofMeyer v Board a/Trustees ofNY City Fire Dept. Art. l-B Pension Fund. 90 NY2d 139, [supra]; Matte~ ofGullo v Kelly, SO AD3d 449 [1st Dept 2008]). Respondent's ,determination was based on "some credible evidence" and was not arbitrary or capricious (Matter :ofJosey v New York Cil)J Police Dept., 50 AD3d [1st Dept 2008]). , f Finally, a hearing is not required where conflicting medical evidence is presented regarding whether pr not petitioner is entitled to accident disability retirement. The Medical Board alone hhs the authority to weigh such evidence (Matter ofRamsey v City ofNew York, 8 4 [* 5] . I ..~ AD3d 392 (supra)). Accordingly, it is I ADJUDGED that the petition is denied and the proceeding is dismissed. This constitutes the decision and judgment of this court. Dated: "M;~h 11·,2009 ENTER: IS.C. JANE S. SOLOMON ',1 , I ! ' Ii I r ,, 5

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