Matter of Trotta v Kelly
2009 NY Slip Op 33272(U)
January 26, 2009
Supreme Court, New York County
Docket Number: 112218-08
Judge: James A. Yates
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SCANNED ON 21612009
SUPREME COURT OF THE STATE OF NEW YORK
Hon. JAMES A. YATES
In the Matter of the Application of
- NEW YORK COUNTY
Index No.: 112218-08
Motion Seq.: 001
RAYMOND KELLY, as the Police
Commissloner of the City of New York, and
as Chairman of the Board of Trustees of
the Police Pension Fund, Article II,
THE BOARD OF TRUSTEES of the Police
Pension Fund, Article ii, NEW YORK CITY
POLICE DEPARTMENT and THE CITY OF
The following papers, numbered 1 to
Notice of MotIonlOrder t o Show Cause - Affidavits
- Exhiblta... 1
Pursuant to CPLR article 78, Petitioner seeks to annul Respondent's May 14,
2008 determination denying his application for accidental dlsability retirement
(ADR) due to a heart condition. The Court is denying the petition because the
Medical Board properly considered the credible evldence before it when deciding
that the Heart Bill presumption In General Municipal Law § 207-kdid not apply.
(See attached Decision and Order.)
COUNTY OF NEW
OF THE STATE OF m W YORK
YORK: PART 50Y
In the Matter of the Application of
For a Judgment under Article 78
of the New York Civil Practice
Law and Rules
Decision and Order
Ind. No. 112218/08
RAYMOND KELLY, as the Police
Commissioner of the City of
New York, and as Chairman of the
Board of TrusteeB of the Police
Pension Fund, Article 11, THE BOARD
OF TRUSTEES of the Police Pension
Fund, Article 11, NEW YORK CITY
POLICE DEPARTMENT and THE CITY OF
Hon. James A . Y a t e a , J.
In thiB CPLR article 78 proceeding, Petitioner seeks to
annul Reapondent's May 14, 2008 determination denying his
application f o r accidental disability retirement (ADR) due to a
heart condition. Petitioner argues that the determination was
arbitrary and capricious because it did not apply the presumption
of General Municipal Law 5 207-k, a l s o known as the "Heart Bill."
Joseph Trotta was a uniformed police officer of the New York
City Police Department (NYPD) since June 7, 1968. On April 17,
2000, Mr. Trotta submitted an application for ADR pursuant to
Administrative Code 8 13-252 and General Municipal Law § 207-k.
Police Commissioner Kelly submitted an application for Ordinary
Disability Retirement (ODR) on Mr. Trotta'B behalf. In hi@ ADR
application, Mr. Trotta stated that he \ \ s u f f e r [ s ] from a h e a r t
condition" ( s e e Resp. Verified A n s . , Nov. 12, 2008, exhibit 1).
Mr. Trotta retired from the NYPD on May 6, 2000 with a Bernice
On September 22, 2000, the Medical Board Police Pension
Fund, Article I1 (Medical Board) examined Mr. Trotta and
concluded that "although [Mr. Trotta] has complaints; that are
consistent with anginal, the objective evidence . . . does not
definitively support the diagnosis. He has a strong hiatory of
smoking and chronic obatruction pulmonary diseaae may in part be
contributory to [his] complaint of dyspnea'. " (See Reap.
Verified A n a . , Nov. 12, 2008, exhibit 2 . ) Thus, the Medical
Board denied the ADR and ODR applications.3
The Board of Trustees of the N e w York City Police Pension
Fund (Board of Trustees) remanded the matter back to the Medical
Board for further consideration on January 16, 2001.
Accordingly, on June 16, 2006, the Medical Board reevaluated Mr.
Trotta's case. It found that the new evidence' provided no
Angina is "[a] condition in which the heart does not
get enough oxygen, reaulting in chest pain and a feeling of
[accessed Jan. 23, 20091).
Dyspnea is a term used to describe difficulty breathing
or a sensation of not getting enough air (see B r e a t h i n g
D i f f i c u l t y , MedlinePlua: A Service of the U.S. National Library
of Medicine, http://www.nlh.nih.gov/medlineplus/ency/article/
003075.htrn [accessed Jan. 2 2 , 2 0 0 9 1 ) .
The Medical Board had conducted a complete review of
Mr. Trotta's medical records, history, complaints, clinical
findings and physical examination (see Resp. Verified A n s . , Nov.
12, 2008, exhibit 2 ) .
The new medical evidence consisted of five typed office
notes. The first note waa dated January 2 , 2001 and stated that
M r . Trotta "continues to have intermittent episodes of cheat
discomfort, but i B clinically stable at this time" (id. at
The second note, dated A p r i l 20, 2001, stated that 'there
was no intrinsic lung disease, but baaed on patient's symptoms,
[Dr. Seymour Huberfeld] feels that coronary angiography is
objective evidence of myocardial ischemia5, and therefore, it
unanimously reaffirmed its September 22, 2 0 0 0 decision denying
the ADR and ODR applications.
On November 8 , 2006, the Board of Trustees considered Mr.
Trotta's case f o r a second time, and remanded it back to the
Medical Board on November 13, 2006. The Medical Board
reevaluated Mr. Trotta's case on November 9, 2 0 0 7 , reviewed
appropriate . . . [After discussion, the patient] will conaider
the alternatives." (Id.)
The third note, dated April 23, 2001, considered Mr.
Trotta's condition as stable. Mr. Trottala blood pressure was
measured at 124/80. The physical examination revealed no
evidence of bruits, thyromegaly, or adenopathy in the neck. Mr.
Trotta's chest was clear to auscultation and percussion, and his
heart examination showed no murmurs, r u b s , gallops, heaves or
thrills ("an abnormal tremor accompanying a vascular or cardiac
murmur f e l t on palpation" (see Taber's Medical Cyclopedic
Dictionary [ 2 0 0 2 ] ) ) . Examination of Mr. Trotta's abdomen was
normal, and examination of his extremities revealed no clubbing
(abnormal enlargement of the fingertips, usually aesociated with
cyanotic heart disease (see H e a l t h G u i d e , New York TlrneB,
sease/overview.html [accessed Jan. 23, ZOOS])), cyanosis (bluish
discoloration of extremities commonly observed in patients with
reduced cardiac output (see Taber'a, s u p r a ) ) , or edema, and his
pulses were at 2 + .
(Resp. Verified h e . , Nov. 12, 2008, exhibit
The fourth note, dated March 14, 2001, describe8 an exercise
stress test with thallium indicating normal myocardial perfusion
(blood flow to t h e heart's wallB and muscles ( s e e Myocardial
Perfusion, http://www.cardio.com/sitel36.php [Cardiovascular Inst
of South, accessed Jan. 23, 2 0 0 9 1 ) ) , and no evidence of
obstructive coronary artery diaease. ' gated SPECT image wae
performed at rest and revealed normal left ventricular function."
(ReBp. Verified A n a . , Nov. 12, 2008, exhibit 12.)
Finally, the fifth note, dated June 14, 2006, states that
M r . Trotta has " [n]o significant past medical history" ( I d . .
Ischemia is a decreased supply of oxygenated blood to a
body organ or part, often marked by pain and organ dysfunction,
as in iBchemic heart disease (see Taber's, s u p r a ) .
additional evidence6, and unanimously reaffirmed its denial of
the ADR and ODR applications. On May 14, 2008, the Board of
Trustees considered Mr. Trotta's case for the third time and
voted to adopt the Medical Board's recommendation. Thereafter,
on September 8, 2008, Mr. Trotta commenced this Article 78
proceeding, challenging only the ADR denial (see Pet. Notice of
Petition, Sept. 8, 2008, at 1-2). The Court, therefore, is only
addressing whether Respondent properly denied Petitioner's ADR
Generally, the applicant f o r ADR benefits has the burden of
establishing both that he is disabled and that his disability
reaulted from an accidental injury received in city service (see
e . g . Matter of Danyi v B o a r d of Trustees of N . Y . City Employees'
Retirement Sys., 176 AD2d 451, 451 [ l s t Dept 19911). The Heart
Bill, however, entitles a police officer disabled due to heart
disease to an evidentiary presumption that the disabling heart
condition resulted from an accidental injury, and that the injury
was received while performing official duties ( e e e Uniformed
Firefighters A s s n . , Local 94, IAFF, AFL-CIO v Beekman, 5 2 NY2d
463, 472-473 ). But, the Heart Bill presumption appliea
only if it is demonstrated that a heart condition caused the
disabling condition in the f i r s t instance (see Appleby v
Herkommer, 165 AD2d 727, 728 [lst Dept 19901).
The award of ADR benefits is a two-step process. First, the
Medical Board "must certify whether the applicant is actually
'physically or mentally incapacitated f o r the performance of
Second, if the Medical Board finds the applicant
disabled, it must recommend whether the diaability was a 'natural
and proximate result of an accidental injury." (Matter of
Borenstein v N . Y . C i t y Employeee' Retirement Sys., 88 NY2d 756,
760-761 , citing NYC Administrative Code §13-168 [a]. )
The new evidence was a nuclear stress teat performed on
October 13, 2 0 0 6 , and interpreted on October 16, 2006. The test
revealed that: (1) Mr. Trotta achieved the maximum predicted
heart rate for his age, (2) his cardiogram was essentially
negative, and (3) although Mr. Trotta may have mild inferior
ischemia, his left ventricle functioned normally. (See Reap.
Verified A n a . , Nov. 12, 2008, exhibit 16.) On November 9, 2007,
the Medical Board also interviewed Mr, Trotta and conducted
another physical examination. Although Mr. Trotta complained of
chest pains, "[elxamination of the heart was negative." (Id. at
exhibit 15 1 5-6.)
Board of Trustees undertakes the second atep only if the Medical
Board finds the applicant dieabled. Since the Medical Board did
not find Mr. Trotta disabled here, the Board of Trustees did not
reach the second step. Thus, the iasue of caueality to an
accidental injury received in city service is not an iesue before
The threshold question of whether an applicant has the
i n j u r y claimed, and whether that injury incapacitates the
applicant from city service performance, is solely for the
Medical Board, and its determination is binding on the Board of
Trustee0 (see Borenstein, 8 8 W2d at 7 6 0 ("If the Medical Board
certifies that t h e applicant is not medically diaabled for duty,
the Board of Trustees must accept that determination and deny
applicant's claim")). 't is well settled that t h e courts cannot
weigh the medical evidence or substitute their own judgment for
that of t h e Medical Board" (Matter of Santoro v Board of T r u s t e e s
of N.Y. City Fire Dept. Art.1-B Pension F u n d , 217 AD2d 660, 660
[2d Dept 1 9 9 5 1 ) .
"The Medical Board's determination is conclusive if it is
supported by any credible evidence and is not irrational" (Matter
of I n g u a n t a v B d . of T r u s t e e s of N. Y . City Fire Dept. A r t . l - B
Pension Fund, 302 AD2d 527, 527 [2d Dept 20031; see a l ~ Matter
of Meyer v Board of T r u s t e e s of N. Y. City Fire Dept. Art. 3 - B
Pension Fund, 9 0 NY2d 139, 145 [19971; B o r e n s t e h , 8 8 NY2d at 7 6 0
("In an article 7 8 proceeding challenging the disability
determination, the Medical Board's finding will be sustained
unless it lacks a rational basis, or is arbitrary or
capricious"); Matter of Schwarzrock v Bd. of TrUBtee8 of N . Y .
C i t y Fire Dept., Art. 1 - B Pension Fund, 238 aD2d 596, 597 [2d
Dept 1 9 9 7 1 ) . Courts have held that the Medical Board's review of
an applicant's submitted medical recorda and an examination of
applicant constitute credible evidence, and that the Medical
Board'e determination of disability was, therefore, neither
arbitrary nor capricioue (Bee e . g . Borenstein, 88 NY2d at 760761; see a l s o Matter of D r e w v N . Y . City Employee's Retirement
Sys., 3 0 5 AD2d 408, 409 [2d Dept 20031 ; I n g u a n t a , 302 AD2d a t
H e r e , the Medical Board performed two physical examinations
of Mr. Trotta. In addition, the record demonstrates that t h e
Medical Board considered all the medical evidence, including that
submitted by Mr. Trotta revealing overall normal resulta.7
Dr. Stanley Shepko, Mr. Trotta's own physician, opined
that although there was some borderline enlargement of t h e left
Although t h e medical conclusions of Mr. Trotta's treating
physicians differed somewhat from those of the Medical Board,
"the resolution of such conflictB is the sole province of the
Medical Board" ( D r e w , 305 AD2d at 409; Bee Borenstein, 88 m 2 d at
761; Tobin, 64 NY2d at 258-259; Matter of Cassidy v Ward, 169
AD2d 482, 483 [lst Dept 19911).
Baaed upon the credible evidence before the Medical Board,
its determination was not irrational (see Meyer, 90 NY2d at
149-150; Borenstein, 88 NY2d at 760; Matter of Barnett v E d . of
Trustees of N. Y. C i t y F i r e Dept., Art. 1 - B PenBion Fund, 264
A.D.2d 840, 841 [2d Dept 19991). Accordingly, the Board of
Trustees properly denied Mr. Trottala application for accident
This constitutes the Decision and Order of the Cour
Dated: January 26, 2009
ventricle ( b u t see id. at exhibit 1 4 a n d 1 5 7 4 (noting that
nuclear stress test performed on Oct.'-16,2008 found normal 1 ft
ventricle size and thickness)), Mr. Trotta's cardiac
contractility was within normal limits. Further, Dr. Shepko
opined that the Doppler examination revealed no significant
stenosis (abnormal condition characterized by constriction or
narrowing of a passage or orifice (see Taber's, s u p r a ) ) , or
insufficiency of Mr. Trotta'a four heart valves. (See Resp.
Verified A n s . , Nov. 12, 2008, exhibit 4 and 2 7 3.)
T h e Medical Board did not give as much weight to t w o of Mr.
Trotta'a other personal physicians, Dr. Morton W. Levine and Dr.
Grigory Klinger. In a report dated May 9, 2009, Dr. Levine
essentially relies on Mr. Trotta's subjective complaints but
fails to provide any objective medical evidence of heart
disability ( s e e id. at exhibit 5). Similarly, Dr. Klinger reliea
on subjective complaints, noting that Mr. Trotta's history
continues to be "typical f o r angina, despite h i s negative workup
to date" (id. at exhibit 12 [emphaaia added]).