Matter of McKay-Brown v Kelly
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Matter of McKay-Brown v Kelly 2012 NY Slip Op 30655(U) March 15, 2012 Supreme Court, New York County Docket Number: 107779/2011 Judge: Barbara Jaffe 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 311912012 [* 1] SUPREME COURT OF THE STb&R@FflfW * YORK - NEW YORK COUNTY I :"I* D b rCrhlT - A:.n r m Ji-,t C : 2 PART r . Index Number : 107779/201I MCKAY-BROWN, CASSANDRA INDEX NO. vs KELLY, RAYMOND MOTION DATE Sequence Number : 001 MOTION SEQ. NO. ARTICLE 78 MOTION GAL. NO. \ PAPERS NUMBFFlgP Notice of Motion/ Order to S h o w Cause - Affidavits - Exhlbits ... 1, 2 ? <y Answerlng Affldavlta - Exhibits Replying Affldavlts UNFILED JUDGMENT Thfs judgment has not been entered by the County Clerk and notice of entry cannot be s e w d basad herwn. To obtain enby, counsel o authorized reprewntatlvb m r u i eppear in person atthe Judgment M ' 8 Dask (Ram 14tB). Check one: Check if app&priate: a [I DO NOT POST I) SUBMIT ORDER/JUDG. REFERENCE 0 SETTLE OEU3ER /JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 -------------_____--I___________________--------------------------------- In the Matter of the Application of CASSANDRA MCKAY-BROWN, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, X Index No. 107779/11 Motion Date: Motion Seq. No.: 12/6/11 00 1 DECISION & JUDGMENT Trustees of the Police Pension Fund, Article 11, and THE BOARD OF TRUSTEES of the New York City Police Pension Fund, Article 11, For petltioner: Jefiey L. Goldberg, Esq. JeMey L. Goldberg, P.C. 2001 Marcus Ave. Lake Success, NY 1 1042 5 16-775-9400 For respondents: Tlyse Sisolak, ACC Michael A. Cardozo Corporation Counsel 100 Church St. New York, NY 10007 2 12-788-0752 By notice of petition and verified petition dated June 27,201 1, petitioner brings this Article 78 proceeding seeking an order reviewing and annulling respondents denial of her application for an accidental disability retirement and directing respondents to retire petitioner retroactive to the date of her service retirement or, in the alternative, directing a remand for a new determination by respondents pursuant to the proper legal standard. Respondents oppose the petition. [* 3] I. RACKGROUNn Petitioner commenced her employment with the New York City Police Department (NYPD) on July 1,2002 and remained continuously employed until her retirement. (Verified Petition, dated June 27,201 1 [Pet.]). While employed, she belonged to the NYPD s Pension Fund. (Id.). On January 3,2008, petitioner was assigned to work as an instructor at the NYPD Police Academy, and, while participating in a grappling training exercise with other instructors, she was injured when she was flipped over by a male instructor and landed on her neck. (Pet.). The Academy s lesson plan or training manual for the exercise provides that NYPD recruits shall participate in wrestlinglgrappling exercises only with other recruits of the same gender. (Id,Exh. . . c>* In August 20 10, petitioner filed an application for an Accidental Disability Retirement (ADR) based on her injury; the NYPD, however, filed an Ordinary Disability Retirement application (ODR). (Pet.). On September 15,2010, the Medical Board disapproved both applications. (Id., Exh. D). Thereafter, the applications were remanded to the Medical Board to consider new evidence. (Id.). By decision dated January 12,20 11, the Medical Board reviewed the new evidence and determined that petitioner was disabled from performing the duties of an NYPD officer. It thus rescinded its previous decision and approved her ADR application, finding that the final diagnosis is Herniated Disc L4-5 with Radiculopathy. The competent causal factor is the line of duty incident of January 3,2008. (Id., Exh. D). On May 11, 201 1, the Board of Trustees reviewed petitioner s application and, by a six [* 4] to six tie vote, denied her ADR application on the ground that an accident which occurs during a training exercise does not constitute an LLaccidental injury for pension purposes. The Board observed that the training manual provides only that recruits must be paired with others of the - same gender and does not address instructors such as petitioner. (Pet.; Verified Answer, dated Oct. 27,201 1 [Answer], Exh. 1 1). Petitioner alleges that the Board of Trustees finding that she did not sustain an injury as a result of an accident was arbitrary and capricious and an abuse of discretion as it occurred from a sudden, unanticipated, and fortuitous event that was unrelated to the ordinary risks of her employment. (Petitioner s Memo. of Law, dated Oct. 11, 201 1). Respondents contend that petitioner s injury was an inherent risk of her duty as an instructor engaged in a training exercise, and that as nothing unexpected or out of the ordinary occurred during the exercise, her injury did not result from an accident as defined by the pension rules. Respondents also observe that the guidelines in the training manual are inapplicable as petitioner was an instructor and not a recruit. (Respondents Memo. of Law, dated Oct. 27, 201 1). In reply, petitioner reiterates that an injury sustained during a training exercise is not an inherent risk of a police officer s employment. (Reply Memo. of Law, dated Nov. 8,201 1). 1 1 ANALYSIS 1, A. Applicable law In reviewing an administrative agency s determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination is without sound basis [* 5] in reason and . , . without regard to the facts. (Matter of Pel1 v Bd. o Educ. of Union Free f School Dist. No. 1 of Towns of Scarsdale & Mumaroneck, Westchester County, 34 NY2d 222, 23 1 [ 19741;Matter o Kenton Assoc. v Div.of Hous. & Community Renewal, 225 AD2d 349 [ 15 f Dept 19961). Moreover, the determination of an administrative agency, acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency s determination is supported by the record. (Matter of Partnership 92 LP & Bldg, Mgt. Co., Inc. v State of IV Y: Div. of Hous. & Community Renewal, 46 AD3d 425,429 [lst Dept 20071, u f d 11 NY3d 859 [2008]). Pursuant to Administrative Code 1 13-252, a police officer may retire with an ADR upon application tb the commissioner stating that the applicant: is physically or mentally incapacitated for the performance of city-service, as a natural and proximate result of such city-service, and certifying the time, place and conditions of such city-service performed by such member resulting in such alleged disability and that such alleged disability wm not the result of wilful negligence on the part of such member and that such member should, therefore, be retired. And, upon a medical examination and investigation showing that the applicant is physically or mentally incapacitated as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of wilful negligence on the part of such member and that such member should be retired, the medical board shall so certify to the board, stating the time, place and conditions of such city-service performed by such member resulting in such disability, and such board shall retire such member for accident disability forthwith. The determination of an ADR application requires consideration of two factors. First, the Medical Board decides whether the applicant is disabled and should be retired (Mutter ofMeyer [* 6] v Bd. of Trustees of N, Y City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144-145 [ 19971). It must then decide whether the disability resulted from a service-related accident, and certify its recommendation on this issue to the Board of Trustees. (Id, at 144-145). The Board of Trustees must then independently determine whether the disability resulted from a service-related accident. (Id.). Thus, although the Board of Trustees is bound by the Medical Board s determination BS to whether an ADR applicant is disabled, it must make its own determination as to whether the disability was caused by a service-related accident. (Mutter of Canfora v Bd ofTrustees of Police Pension Fund of Police Dept. of the City of N . Y, II,60 NY2d 347 [ 19831). If the Art. Board of Trustees s determination to deny an ADR application is reached by a six to six tie vote, the determination may be set aside only if 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. (Id.). An accident in this context has been defined as a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact and thus, an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury . . .,, (Matter o Lichtenstein v Bd, of Trustees of Police Pension FundofPolice f Dept. ofcity o f N Y , Art. II,57 NY2d 1010, 1012 [1982]). It is not an injury sustained while performing routine duties but not resulting from unexpected events and the critical f determination is whether there was a precipitating accidental event. (Matter o McCambridge v McGuire, 62 NY2d 563 [1984]). [* 7] B. was the Board of Trustees s d e m t. i o. n arbitraw &g cap1icious or an abuse of discretion1 Here, it is undisputed that petitioner s participation in the training exercise on the day of her accident was an ordinary part of her employment duties with the NYPD, and it has been held that an injury that occurs during a routine training exercise does not constitute an accident. (See Matter ofNeeZy v DiNapoli, 71 AD3d 1367 [3d Dept 20101 [petitioner fell from ladder during training exercise]; Matter of Hulse v DiNapoli,70 AD3d 1235 [3d Dept 20101 [petitioner injured during bicycle training course; manner in which injury occurred, practicing technique to fall safely off bicycle, not unexpected or unanticipated]; Matter of Stimpson v Hevesi, 38 AD3d 979 [3d Dept 20071 [injury resulted from training program that was part of petitioner s ordinary job duties and normal risks arising therefrom]; Matter of MarsaZu v New York State & Local Empls. .. Retirement Sys., 14 AD3d 984 [3d Dept 20051, lv denied 4 NY3d 709 [petitioner injured during bicycle training course]; Matter of Becker v Ward, 169 AD2d 453 [1st Dept 19911 [petitioner injured ankle during routing class exercise when she landed off balance]). That the injury is caused by another participant in the exercise does not transform the incident into an accident. (See Mutter of Wolak v DiNupoli, 71 AD3d 1370 [3d Dept 20101 [petitioner bitten by police dog during dog training program]; Mutter ofDeLaCruz v DiNupoli, 67 AD3d 1297 [3d Dept 20091 lpetitioner injured during training exercise when other participant stumbled and fell, pulling petitioner to ground and causing her injuries]; Matter of Felix v New York State Comptroller, 28 AD3d 993 [3d Dept 20061 [injury occurred when petitioner s partner unexpectedly grabbed her body rather than her arm during training exercise, causing her to fall; that partner may not have performed exercise as instructed or she did not anticipate his movement irrelevant]; Matter ofMcKenna v Hevesi, 26 AD3d 584 [3d Dept 20061 [female 6 [* 8] petitioner injured during drill with male partner when two struggled as part of exercise and she fell to ground]; Mutter of Santorsolu v McCuZl, 302 AD2d 727 [3d Dept 20031 [petitioner tripped over partner s leg during firearms training exercise]), Petitioner submits no evidence demonstrating that anything sudden, unexpected, or extraordinary happened during the exercise, Rather, the purpose of the exercise was for the participants to practice flipping each other over. In contrast, in Matter of Carr v Wurd, the sudden and unexpected event which led to the petitioner s injury was a comment by the exercise instructor to her partner that incited him to hit her harder than expected. Thus, the court found that the injury was not caused by the exercise itself. [Tlhis was not the ordinary situation faced by the police recruit in a sparring exercise, simply dodging jabs and hooks of varying degrees of force with no personal animus impelling those blows. (1 19 AD2d 163 [ 1 Dept 19861). And, as the section of the training manual relied on by petitioner pertains only to recruits, it is inapplicable here. Having failed to demonstrate that the injury resulted from an accident as a matter of law, petitioner has also failed to demonstrate that respondents determination was arbitrary and capricious or an abuse of discretion. (See Matter of WaZsh v Scopetiu, 73 AD3d 1 192 [2d Dept 20101, afld 18 NY3d 850 [2011] [as cause of injury not unexpected, determination that injury was not caused by accident was rationally based and not arbitrary and capricious, and court properly found that it could not determine as matter of law that petitioner s disability resulted from service-related accident]). Accordingly, it is hereby - 7 [* 9] ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed. ENTER: DATED: JAFFE March 15,2012 New York, New York J.S.C. UNFlLED JUDGMENT Thls Judgment has not been entered by the CoontV Ckrk 8
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