Matter of Mallozzi-Petrizzo v Kelly

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Matter of Mallozzi-Petrizzo v Kelly 2012 NY Slip Op 30458(U) January 27, 2012 Supreme Court, New York County Docket Number: 106870/2010 Judge: Lucy Billings 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. ANNED ON 212912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY L ~ CL I ; ,: L d r L L I *.a - PART Index Number : d?.~ INDEX NO. f~&TJ/%IG MALLOZZI-PETRIZZO, 'ELLEN MOTION DATE VS. MOTION SEQ. NO. KELLY, RAYMOND MOTION CAL. NO. SEQUENCE NUMBER : 001 - ARTICLE 78 this motion to/for J - Notice of Motion/ Order to Show Cause Answering Affidavits - Affidavits - PAPERS NUMBERED Exhibits ... Exhibits I z 3 Replying Affidavits Cros$-Motion: fl No 0 Yes m: Upon the foregoing papers, it is ordered fib UNFILED JUDGMENT This iudament has not been entered by the County Clerk and noti& of entry cannot be sewed based hereon. To obtain entry, counsel or authorized representative must. appear in person at the Judgment Clerk's Desk (RoaER - 1 I41B). Check one: @FINAL DISPOSITION Check if appropriate: 0 DO 0 NON-FINAL DISPOSITION NOT POST n SUBMIT ORDER/JUDG. [7 REFERENCE I [* 2] SUPREME COURT O F THE STATE O F NEW YORK COUNTY O F NEW YORK: PART 4 6 In the Matter of the Application of ELLEN MALLOZZI-PETRIZZO, Index No. 106870/2010 Petitioner, For a Judgment Under Article 7 8 of the Civil Practice Law and Rules DECISION AND ORDER - against - RAYMOND KELLY, as Police Commissioner of the City of New York, and as UNFL E D JUDGMENT Chairman of the Board of Trustees of the Police Pension Fund, Article I T . ijudgment has not been entered by the County Ckrl I,.s BOARD OF TRUSTEES of the Police and notice of entry cannot be served based hereon. T c Pension Fund, Article 11 ; and CITY @in entry, C O U n S d or authorized representative mUs appear in person at the Judgment Clerk's Desk (Rwfl NEW YORK, 141B). Respondents _ _ _ _ _ _ _ _ _ _ - _ _ f _ _ _ l l _ - - - - - - - - - - - - - - - -X - - LUCY BILLINGS, J.S.C.: I. BACKGROUND Petitioner, a former New York City Police Officer, injured h e r right knee October 29, 1992, while n the police academy, and her right ankle and right knee June 16, 2008, while she responded to a c a l l summoning the police. Respondent Board of Trustees of t h e P o l i c e Pension Fund granted petitioner ordinary disability retirement benefits. Respondent Commissioner then directed respondents' medical board to evaluate petitioner f o r the higher accidental disability retirement (ADR) benefits due to her right knee injury. Respondents' medical board considered treatment notes and surgical reports from petitioner's treating physician and msllozzi.138 1 [* 3] physical therapist and reports from respondents' examining physician. Citing petitioner's ongoing pain symptoms, the medical board concluded October 16, 2009, sustained a line of duty injury June 16, that petitioner 2008, longer perform the duties of a police officer. and could no The medical board unanimously recommended approval of ADR and disapproval of ordinary disability retirement. At proceedings December 9 , 2009, respondent Board of Trustees noted the medical board's approval of ADR, b u t tabled t h e question to allow for additional evidence. February 2 5 , 2010, t h e At proceedings Board of Trustees viewed a photograph of the stairs on which petitioner tripped. Finding no defect in the stairs, the Board of Trustees granted ordinary disability retirement, but denied ADR by a 6 to 6 vote. In this proceeding pursuant to C.P.L.R. Article 7 8 , petitioner seeks to annul respondents' determination February 25, 2010, denying her ADR as arbitrary and to require respondents to grant her ADR or, alternatively, review her application again or grant her a hearing. 13-252. C.P.L.R. 5 7 8 0 3 ( 3 ) ; N.Y.C. Admin. Code § Petitioner also seeks respondents' production of specified documents, but nowhere indicates the grounds f o r this request. 11. APPLICABLE STANDARDS In reviewing respondents' determination regarding disability, the court must defer to the medical board's determination of causation and uphold it if rationally based and rnsllozzi.130 2 [* 4] not arbitrary, capricious, an abuse of discretion, or contrary to law. Borenstein v. New York City Emplovees' Retirement S v s . , 8 8 N.Y.2d 7 5 6 , 7 6 0 (1996); Maldonado v. Kelly, 86 A.D.3d 518, 519 (1st Dep't 2011); Claudio v. Kelly, 84 A . D . 3 d (1st Dep't 667 2011); Jefferaon v. Kelly, 5 1 A.D.3d 536 (let Dep't 2008). Linden A i r p o r t Mqt. Corp. v. New YQrk City Economic Dev. Corp., 71 A.D.3d 501, 502 (1st Dep't 2010); Valentin v, New York City Police Pension Fund, 16 A.D.3d 145 (1st Dep't 2005); City of New York v. O'Connor, 9 A.D.3d 3 2 8 (1st Dep't 2004). Physical or mental incapacity to perform city service qualifies a police officer f o r ordinary disability retirement. N.Y.C. Admin. Code § 13-251. If that incapacity is "a natural and proximate result of an accidental injury received in such city-service while a member, and . . such disability was not t h e result of wilful negligence on the part of such member," the police officer is eligible f o r ADR. N.Y.C. Admin. Code § 13-252. While not defined in the Administrative Code, "wilful negligence" is construed as consciously disregarding the consequences of actions. Sullivan-DQrsey v. Board of Trustees of N.Y. City Police Pension Fund, Art. 11, 288 A.D.2d 131, 1 3 2 (1st Dep't 2001); Robinson v. New York State Retirement SYB., & Local Police & Fire 192 A.D.2d 951, 952 (3d Dep't 1993). The medical board's medical examination must establish disability. N.Y.C. Admin. Code 5 5 13-251, 1 3 - 2 5 2 . Thus the medical board's fact finding process requires (1) determining whether the applicant is physically or mentally incapable of rnellozzi.l38 3 [* 5] performing city work and (2) whether an Ilaccidental" injury while in service proximately caused the applicant's disability to perform that work. Mever v. BQard of Trustees of N.Y. City Fire D e p t . , Art. 1-B Pension Fund, 90 N.Y.2d 139, 144 (1997); Borenetein v. New York C i t y Employees' Retirement Sys., 88 N.Y.2d at 760. The medical board's determination must be supported by substantial evidence, which must be credible, relevant evidence reasonably adequate to support a fact or conclusion. Jenninqs v, New York State Off. of Mental Health, 90 N.Y.2d 227, 2 3 9 (1997); Borenstein v, New York C i t y Employees' Retirement S Y S . , at 760. &g McCabe v. HeveRi, 38 A.D.3d 1035, 1036 88 N.Y.2d (3d Dep't 2007). Credible evidence is evidence from a reliable source, which must reasonably tend to support the fact or conclusion for which t h e evidence is o f f e r e d , as long as it is neither conjecture nor simply a conclusion itself. Truetees of N . Y . C i t y F i r e Dent., Art. 1-B Mever v. Board of pension Fund, 9 0 N.Y.2d at 147; Cusick v . Kerik, 305 A.D.2d 247, 248 (1st Dep't 2003). 111. PETITIONER'S CLAIM OF ACCIDENTAL INJURY ENTITLING HER TO ADR The parties do not dispute that: petitioner is disabled from performing work as a police officer. The parties do dispute, however, whether her injury June 16, 2008, was accidental. In claiming entitlement to ADR based on her right knee injuries sustained in the line of d u t y , petitioner maintains that reepondents' denial of ADR failed to apply the required standards in evaluating whether s h e sustained h e r disability in t h e line of rnallorzf.138 4 [* 6] duty, reaching a conclusion contrary to the evidence, and depriving h e r an opportunity for a fair hearing. Not every line of duty injury is accidental, McCambridqe v. McGuire, 62 N . Y . 2 d 563, 567-68 176 (1st Dep't 2004). (1984); Hopp v. Kelly, 4 A.D.3d While Administrative Code 5 13-252 does not define accidental or accident, the latter term is construed as sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Lichtenstein v. Board of Trustees of Police PensiQn Fund of Police Dept. of City of N.Y., A r t . 11, 5 7 N.Y.2d 1010, 1 0 1 2 (1982). See Starnella v. Bratton, 92 N.Y.2d 836, 838 (1998); McCambridqe v. McGuire, 62 N.Y.2d at 568; Baird v. Kelly, 25 A.D.3d 311, 312 (1st Dep't 2 0 0 6 ) ; Rosenthal v. Board of Trustees of N.Y. City Police Pension Fund, Art. 11, 252 A.D.2d 388, 389 (1st Dep't 1998). To constitute an accident, an unexpected occurrence other than a risk of t h e duties performed must have caused the i n j u r y . St arnella v. Bratton, 92 N.Y.2d at 838-39; McCambridqe v. McGuire, 62 N.Y.2d a t 568. To reverse the Board of Trustees' determination that an accident did not cause petitioner's disabling injury, petitioner must show that their determination was not supported by credible evidence. Lichtenscein v. Board of Trustees of Police Pension Fund of Police Dept, of City of N.Y., A r t 11, 57 N.Y.2d at 1012; Picciurro v. Board of Trustees of N.Y. City Police Pension Fund, Art. IT, 46 A.D.3d 346, 348 (1st Dep't A.D.3d 176. rnalloxzi.136 5 2 0 0 7 ) ; Hopp v. Kelly, 4 [* 7] A. The Bagis for Respondents' Denial of ADR The sole basis for respondents' denial of ADR was a photograph of the stairs on which petitioner fell, which the Board of Trustees found did not Bhow any defective condition. Falling down stairs from a misstep alone is not so extraordinary or unanticipated as to constitute an accident as defined in this context. Starnella v. Bratton, 92 N.Y.2d at 839; ROsenthal v . Board of Trustees of N.Y. City Police Pension Fund, A r t . 11, 252 A.D.2d at 389. See Gray v . K e y i k , 15 A.D.3d 2 7 5 (1st Dep't 2005); MCCabe v, Hevesi, 38 A.D.3d at 1036. Even though the medical board recommended ADR, the Board of Trustees is not bound by that recommendation insofar as it depends on non-medical determinations. Picciurrn v. Board of Trustees of N.Y, City Police Pension Fund, Art. II,, 46 A.D.3d a t 348; Luisi v . Safix, 2 6 2 A.D.2d 47, 48 (1st D e p ' t 1 9 9 9 ) ; Calzerano v . Board. of Trustees of N.Y. Citv PQlice Pension Fund, Art. 11, 245 A.D.2d 84 (1st Dep't 1 9 9 7 ) . Petitioner's failure to mention any defect in the stairs in any of her statements concerning the cause of her injury further supports respondents' conclusion. Gamman v. Kelly, 11 A.D.3d 389 (1st Dep't 2004); K u h n v . Bratton, 2 4 0 A.D.2d 171, 172 (1st Dep't 1 9 9 7 ) . Officer Concepcion, who witnessed petitioner's fall, likewise did not report a defect in the stairs. Petitioner's amendment July 14, 2008, to her line of duty injury report sought only to include injuries to her lower back and right foot. msllozzi.138 6 [* 8] B. The Basis f o r Petitioner s Challenqe to Respondents Denial Petitioner challenges respondents determination by presenting an unsworn letter dated April 26, 2010, by John J. Flynn P . E . , an expert engineer, recounting that on April 20, 2010, he, petitioner, and her attorney visited the building where petitioner was injured June 16, 2008. Based on his inspection, Flynn concluded that the irregularity of the g t a i r s risera and treads where petitioner fell did not comply with specified building code requirements and caused her fall. Although an adjudicatory body may not consider an engineer s opinion regarding the applicability of and compliance with legal requirements, an adjudicator may consider the engineer s factual findings regarding the structure s condition. Bucholz v. Trump 767 Fifth Ave., 4 A.D.3d 178, 179 (1st Dep t 2004), aff d, 5 N.Y.3d 1 (2005); Reyea v. Morton Williams Aaaociated Superrnqrkets, Inc., 50 A.D.3d 496, 497 (1st Dep t 2 0 0 8 ) ; Blonder & co., Tnc. v. Citibank, N.A., 28 A . D . 3 d 180, 183 (1st Dep t 2006); Measom v. Greenwich & Perry St. Hous. C o r p . , 268 A.D.2d 156, 159 (1st Dep t 2000). Flynn s letter also is unsworn hearsay, but hearsay evidence that does not qualify as an exception to the rule against hearsay may constitute substantial evidence supporting an administrative adjudication, as long as the evidence is sufficiently relevant and probative. Foster v , Couqhlin, 76 N.Y.2d 964, 966 (1990); Gray v. Adduci, 73 N.Y.2d 741, 742 (1988); Perez v. Wilmot, 67 N.Y.2d 615, 616-17 ( 1 9 8 6 ) ; 49th St . Mqt. Co. v. New York City Taxi mallozzi.138 7 & Limousine Commn., 277 [* 9] A.D.2d 103, 106 (1st Dep't 2000). Flynn's opinion, however, lacks probative value. 101 Maiden Lane Realty Co., LLC v. Tran Han Ho, 88 A.D.3d 596 (1st Dep't 2011); Quinones v. Kaieniewi~z,80 A.D.3d 506 (1st Dep't 2011). No evidence indicates that, when Flynn inspected the stairs where plaintiff fell, they were in the same condition then, in April 2010, as when plaintiff fell in June 2008. GilBon v, Metropolitan Opere, 15 A.D.3d 55, 59 (1st Dep't 2005), aff'd, 5 N.Y.3d 574 (2005); MachadQ v. Clinton Hous. Dev. Co., Inc., 20 A.D.3d 307 (1st Dep't 2005); Budd v. Gotham Houge Owners Corp., 17 A.D.3d 122, 123 (1st Dep't 2005); Santiaqo v. United Artists CQmmunicationg, 263 A.D.2d 407, 4 0 8 (1st Dep't 1999). Even though petitioner accompanied Flynn on his inspection, her affidavit dated December 10, 2010, fails to cure this deficiency. She attests that she visited the building where she was injured June 16, 2008, three times since her injury and that the stairs appeared to be in the same condition as when she fell, but she does not indicate when those three visits occurred. Nor does she attest to this comparison when she accompanied Flynn during his inspection. In fact, petitioner never describes any defect in the stairs, nor even claims they were defective, b u t merely attests that she "unexpectedly tripped." Aff. of Ellen MallozziPetrizzo 7 3. Petitioner thus fails to proffer new evidence on the issue of an accidental injury to be considered on a remand to the administrative agency. B l d q s . v . City of N . Y . , mellozzi.138 E.q., Aurinqer v. D e p a r t m e n t of 24 A . D . 3 d 8 162, 163-64 (1st Dep't 2005); [* 10] Luisi v. S a f i r , 262 A.D.2d at 49-50; Poster v. Strouqh, 299 A.D.2d 127, 142-43 ( 2 d Dep't 2002). Div. of HOUS. Contr. & & See Rizzo v . New York State rommunity Renewal, 6 N.Y.3d 104, 111 (2005); Constr. Corp. v. PJew York City Dept. of Desiqn & Constr., 2 5 A.D.3d 488 (1st Dep't 2006); Kirmayer v. New York State Dept. of Civ. Serv., 24 A.D.3d 850, 852 (3d Dep't 2005). Since the Board of Trustees denied ADR based on a 6 to 6 vote, the court may reverse that determination o n l y if the evidence establishes t h a t petitioner's disability arose from a service related accident as a matter of law. McCambridqP v. McGuire, 62 N.Y.2d at 568; Picciurro v. Board of Trustees of N.Y. City Police Pension Fund, Art. 11, 46 A.D.3d at 347; Biaani v. Kelly, 39 A.D.3d 261; Furlonq v. $afir, 295 A.D.2d 248 (1st Dep't 2002). Just as the prior record failed to meet this high standard, t h e evidence petitioner now presents, combined with the prior record, f a r e s no better. Picciurro v. BQard of Trusteee ~f N.Y. City Police Pension Fund, A r t . IT, 46 A.D.3d at 348; H o p p v. Felly, 4 A.D.3d 1 7 6 . See Luisi v. S a f i r , 262 A.D.2d at 50. The engineer's report and petitioner's more recent claims of defective stairs still fall far s h o r t of establishing an accidental injury as a matter of law. Bisani v. KeJlv, 39 A . D . 3 d 261; Morqan v. Kerik, 305 A.D.2d 288, 289 (1st Dep't 2003). IV. CONCLUSION Upon this record, even as supplemented by petitioner's new evidence, petitioner has failed t o establish that respondents' denial February 2 5 , 2010, of ADR to her violated lawful [* 11] procedure, was affected by any other error of law, was arbitrary, lacked a rational basis, or was unsupported by the evidence presented. C.P.L.R. § 7803(3) and (4). Therefore the court denies the petition and dismisses this proceeding. C.P.L.R. 5 7806. Since petitioner has not explained her reason or purpose in requesting that respondents produce documents, the court d e n i e s this request as unsupported. If h e r request is not academic in light of this disposition, because she needs those documents i n the further administrative proceedings, she may present her request to respondents in conjunction with any such proceedings. This decision constitutes the court's order and judgment denying the petition and dismissing this proceeding. DATED: January 27, 2012 L - Q - + 7 s LUCY BILLI~GS,J.S.C. UNFLED JUDGMENT misjudgment has not been entered by the COUnV and notice of entry cannot be served based hereonobtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B). 10 .c. LUNGS

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