Lang v Kelly
2012 NY Slip Op 30907(U)
April 3, 2012
Supreme Court, New York County
Docket Number: 112008/11
Judge: Jean Lang
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ANNED ON41912012
SUPREME COURT OF THE STATE OF NEW YOFW- NEW YORK COUNTY
PRESENT : DONNA M. MILLS
PART
58
Justice
INDEX
No.
JEAN LANG,
112008/l I
MOTION
DATE
Petitionet,
-V-
MOTION No. 001
SEQ.
RAYMOND KELLY, as the Police Commissioner of the
City of New York, et al.,
Respondents.
MOTION No.
CAL
were read on this motion
The following papers, numbered 1 to
PAPERS
NUMBERED
Notice of MotiodOrder to Show Cause-Affidavits- Exhibits ....
I'
Answering Affidavits- Exhibits
L
7
3, ct
4
Replying Affidavits
CROSS-MOTION:
j ,
YES
/NO
upon the foregoing papers, it is ordered that this motion is:
DECIDED IN ACCORDANCE WITH ATTACHED MEMORANDUM DECISION.
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F o r 8 Judgment under Article 78
ofthe Civil Practicc Law and Rules.
-againstIUYMOND KEI,LY, as the Police Commissioner of
the City Of New York, and as Chairman of the Board of
â1-rusteesof-the Police Iâcnsion Fund, Article 1 , THE
1
BOARD O F TRUSâIâEES of the Police Pension Fund,
Article 11, NEW YORK CITY POLICE DEPARTMENT
and â1â1 IE CIâIâY Obâ NEW Y O N ,
Respondents
DONNA MILES,,J.:
M.
Index No. 1 12008/11
FILED
NEW YORK
COUNTY CLERKâS OFFICE
In this Article 78 proceeding, petitioner Jean Lang seeks a judgment annulling
the determination of respondents Raymond Kelly, as the Police Commissioner of the
City of New York, and as Chairman of the Board of Trustees of the Police Pension
Fund, the Board of Trustees of the Police Pension Fund, Article I I (âthe Board of
Trusteesâ), the New York City Police Department and the City of New York (collectively
Iâ
respo ndentsâ) w h ic h de nied he r acc ide nt disabiIity retireme nt , (âA DRâ) a ppIicat io n
pursuant to
5 13-252 of the Administrative Code of the City of New York
(âAdministrative Codeâ), and instead awarded her ordinary disability retirement (âODRâ)
benefits pursuant to Administrative Code 3 13-251. Petitioner also asks the Court to
direct the Board of Trustees to grant her ADR benefits outright or for another
reconsideration of her application
Justice Jane Solomon of the New York State Supreme Court,
On May 13, 201 I,
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County of New York, granted petitioner a remand of her ADR application, holding that
the Board of Trustees did not rely on the commonsense definition of accident as set
forth by the Court of Appeals. In accordance with the Courtâs directions, the Board of
Trustees again considered petitionerâs case and set forth a detailed record regarding
the basis for its determination to again deny petitionerâs ADR application. Petitioner now
challenges this new determination.
It is undisputed that petitioner suffered injuries on March 15, 2008, when
she tripped on wires while exiting the female supervisorâs locker room/bathroom in
response to a radio call. Although the Medical Board found petitioner disabled, the
Board of Trustees was not con,vinced that petitionerâs injuries were caused by an
accident as defined by relevant statutes and case law. Specifically, the Board of
Trustees, both in the initial Article 78 proceeding and upon reconsideration, was unable
to conclude that petitioner was unfamiliar with the condition of the area where she had
her incident; therefore, they found that petitioner did not establish as a matter of law
that her injury was the result of a sudden unexpected circumstance. As a result, on
June 9, 2010, petitioner was retired on ODR pursuant to a six to six vote of the Board of
Trustees.
At the time of injury, both petitioner and petitionerâs supervisor described the
wires as ââexposedâ. However, over two years after the date of injury, petitioner
submitted a written statement, dated April 9, 2010, to the Board of Trustees, that
stated:
The undersigned was assigned to the 751â~ in February 2005. In
Pct.
December 2007 through January 2008 the command was equipped with
-
-I-
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new computers. One was placed in the female supervisors locker room.
Wires from the computers, along with others were placed crossing the
doorway from the locker room to the bathroom and were secured to the
floor with duct tape causing no hazard. On the day of my injury the tape
had been removed and the wires were left raised from the floor causing
myself to trip over them.
The Board of Trustees attempted to acquire additional information concerning the
circumstances of petitionerâs injury in order to ascertain whether petitioner was aware of
the exposed wiring, and to corroborate the facts set forth in her April 9, 2010 statement,
which they claim differed from the information provided in the line-of-duty injury report,
with respect to the wires being taped down.
Respondents contend that after accepting a written statement from the
petitioner, reviewing a work order summary provided by the Sergeantâs Benevolent
Association, and reviewing the Medical Boardâs report, the Board of Trustees could not
conclusively determine whether petitioner was unfamiliar with the conditions where the
incident took place. Additionally, respondents argue that upon reconsideration and after
reviewing two letters written by Jeffrey Goldberg on petitionerâs behalf, the Board could
not conclude that her injuries were a result of a âsudden, unexpected circumstance.â
Rather, respondentsâ maintain that petitioner was aware that the wires had been
running across the doorway from the locker room to the bathroom for many months
prior to her injury.
The qualifications for ADR and ODR for police officers are set forth in New York
City Administrative Code § 13-252 and 13-251, respectively. The statutory scheme
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~
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entitles a police officer to ADR if she is âphysically or mentally incapacitated for the
performance of city service as a natural and proximate result of an accidental injury
received in such city-service
..
and that such disability was not the result of willful
negligence....â Code § 13-252. For an officer to become entitled to ADR, the Trustees
must determine not only that she was unfit for duty and was injured in a line-of-duty
accident, but also that such accident proximately caused the disability. Dravson v.
Board, 37 A.D.2d 378, 380 (1st Dept.1971). Although t h e Trustees make this
determination, they rely on the Medical Boardâs recommendations to determine all
medical issues.
In the usual Article 78 proceeding, the review of the Boardâs decision is limited to
whether their decision was supported by âsome credible evidenceâ and was not arbitrary
and capricious Dravson, supra at 380. See also Borenstein v. New York City
Employeesâ Retirement System, 88 N.Y.2d 756, 760 (1996) This standard is set as
courts cannot âweigh the medical evidence or substitute their own judgment for that of
the Medical Board.â Eorenstein, supra at 761 (citing Bradv v. Citv of New York, 22
N.Y.2d 601; Appleby v. Herkommer, 165 A.D.2d 727 (?st Dept.1990)). Ordinarily, the
decision of the Trustees as to the cause of an officerâs disability âwill not be disturbed
unless its factual findings are not supported by substantial evidence or its final
determination and ruling is arbitrary and capricious.â Canfora, supra at 351. However,
where, as in this case, the Trustees deny ADR but grant ODR pursuant to a 6-6 tie
vote, the standard of judicial review must be different as the Trustees have made no
findings Denial of ADR in consequence of a tie vote âcan only be set aside if the courts
conclude that the retiree is entitled to [ADR] as a matter of law.â Mever v. Board of
-4-
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Trustees, 90 N.Y.2d 139, 145 (1997). Thus, the Court may not set aside the denial of
ADR unless the Court can conclude as a matter of law that disability was the natural
and proximate result of a service-related accident . No such conclusion can be drawn
here.
This Court finds that the Board was entitled to credit contemporaneous accounts
that did not mention that the wires that caused petitioner's fall were previously taped to
the floor and to discredit the subsequent 2010 statement that did (see Matter of Gray v
Kerik, 15 AD3d 275 [2005]). Reviewing the record before this Court, I can not say as a
matter of law that petitioner's disabling injury, sustained when she tripped over computer
wiring in the locker room/bathroom where she was very familiar with the location, was the
result of an accident and not her own misstep (see Matter of Starnella v Bratton, 92 NY2d
836, 839 [I 9981). There is no contemporaneous evidence corroborating the claims made
in petitioner's 2010 statement that the wires were previously taped to the floor,
Therefore I find that it was neither irrational nor an error of law for the respondents
to deny ADR on the grounds that petitioner's fall was not an accident. The risk of tripping
in the instant action cannot be considered sudden, unexpected, and out of ordinary, and
it cannot be said that petitioner is entitled to ADR as a matter of law. See In re Meiia v.
Kerik, 301 A.D.2d 385 (1st Dep't 2003). Accordingly, it is hereby
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed,
