Matter of Frezzell v Kelly
2012 NY Slip Op 31076(U)
April 19, 2012
Supreme Court, New York County
Docket Number: 110194/2011
Judge: Carol E. Huff
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SUPREME COURT OF THE STATE OF NEW YORK
Index Number : 110194/2011
Sequence Number : 001
MOTION SEQ. NO.
The followlng papem, numbered 1 to
Notlcs of MotIonlOrdsr to Show Cause
, were read on thin motion tolfor
- Amdrvlb - ExhiblG
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Upon the foregoing papers, It is ordered that t b
T l judgment has not b w n entered by the County ClaQE
and noti& of entry cannot be served based ~MWL O
obtain entry, counsel or authorized represantativla i m d
r in perw#l atthe J W ~ ~ m e n t C l w k ' s a a J r ~ ,
0DENIED 0GRANTED IN PART 0OTHER
CHECK AS APPROPRIATE: ...........................
MOTION I : 0GRANTED
CHECK IF APPROPRIATE: ................................................ m S m L E ORDER
TJ DO NOT POST IJ FIDUCIARY APPOINTMENT
APR 1 9 2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW Y O N : PART 32
In the Matter of the Application of
Index No. 110194/11
For a Judgment under Article 78 of the Civil Practice Law :
This Ivdgment has not been enteredby the County Clerk
- against mnd Aotk of entry cannot be served based hereon. To
obtain entry, cwrise~ authorized representative muat
RAYMOND KELLY, as the Police Commissioner of t
City of New York, and as Chairman of the Board of jQ1g).
Trustees of the Police Pension Fund, Article I1 and
THE BOARD OF TRUSTEES of the New York City
Police Pension Fund, Article IT,
CAROL E. HUFF, J.:
In this Article 78 proceeding, petitioner seeks to annul the determination of respondent
Board of Trustees of the Police Pension Fund, dated May 11, 20 I 1 , which denied him an
accident disability retircrnent (“AD”’), and an order directing respondents to retire him with the
ADR allowance retroactively. In the May 1 1 decision, by a six-to-six vote, the Board of
Trustees granted petitioner an Ordinary Disability Retirement (“ODR”) (a tie vote results in an
award of ODR pursuant to Citv of New York v Schoeck. 294 NY 559 ).
Petitioner had been a New York City Police Officer since June 30, 1992. In March 1996,
he suffered an off-duty back injury while icc skating. At that time he underwent a CT scan of his
spine, which revealed a herniated disc at L5-S 1. On April 26, 1996, the NYPD placed him on
limited capacity duty. He was restored to full duty on August 27, 1997.
Petitioner remained on full duty until he suffered line-of-duty injuries on September 20,
2006, when his patrol vehicle collided with another patrol vehicle. After the accident he never
returned to full duty. According to the Line-of-Duty Injury Report dated September 2 I, 2006, he
suffered “minor injuries to his arms, neck, back and chest.” Amended Verified Petition Ex. C.
Thereafter petitioner received treatment for his back including pain management therapy.
On February 17, 2009, the Police Pension Fund Medical Board considered petitioner’s
application for ADR and ODR. The Medical Board disapproved both applications, finding there
to be “no significant findings precluding this officer from performing the full duties” of a police
officer. Amended Verified Petition Ex. C.
On April 2 1, 2009, petitioner underwent back surgery to replace disc L5-S 1, the same
disc implicated in the 1996 off-duty skating injury. On June 8,2010, the Medical Board again
considered and determined petitioner’s case, awarding him an ODR and stating that petitioner’s
disability was “a result of his surgery for degenerative disc disease which was a non line of duty
and progressive since 1996.’’ Amended Verified Petition Ex. H.
Following that determination, petitioner’s treating physiatrist, Andrew Brown, M.D.,
submitted a letter to the Medical Board stating that petitioner’s “work related motor vehicle
accident of 09/20/06 is the competent producing cause for his need for disc replacement.”
Amended Verified Petition Ex. J.
On December 7, 20 10, the Medical Board again reviewed the case and confirmed its
earlier decision granting an ODR and denying an ADR.
The Board of Trustees of the Police Pension Fund met on April 13 and May 11,201 1, to
review the Medical Board’s findings, and also reviewed statements from Dr. Brown and
orthopedist Jeffrey A. Goldstein, M.D., who stated their opinions that petitioner’s disabling
injuries were causally related to the 2006 line-of-duty accident. The Board of Trustees upheld
the Medical Board’s finding by a six-to-six vote.
“[Tlhe applicant for accident disability retirement
. has the burden of establishing that
the disability is causally connected to a line of duty accident.” Evans v C itv of New York, 145
AD2d 361 (1“ Dept 1988). The Medical Board must determine whether the disabling injuries
are causally connected to a line of duty accident and make a recommendation to the Board of
Trustees, “the body ultimately responsible for retiring the pension fund member and determining
the issue of service-related causation (Administrative Code 58 13-353, 13-323[b]).” Meyer v
Board of Tmste
i 1 1- P n i nFund,90NY2d 139,
144 (1 997). The Medical Board’s finding must be based on “credible evidence.” I.The Board
of Trustees is entitled to rely on the Medical Board’s independent findings even if it contradicts
a petitioner’s treating physicians. Tobin v Steisel, 64 NY2d 254 (1985). Where the Board of
Trustees is deadlocked on this issue, “[oln subsequent review in an article 78 proceeding, the
reviewing court may not set aside the Board of Trustees’ denial of accidental disability retirement
resulting from such a tie vote unless ‘it can be determined as a matter o f law on the record that
the disability was the natural and proximate result o f a service-related accident.”’ M. 145,
quoting Canfora v. Board of Trustees of Police Pension Fund of Police Rept, of Citv of New
York, 60 NY2d 347,352 (1983).
The Medical Board here determined that petitioner’s disability was caused by the
degenerative condition petitioner incurred in connection with his herniated disc at L5-S 1, which
he injured in an off-duty accident in 1996. Its deterniination is supported by the credible
evidence of its own examination of petitioner, as well as petitioner’s medical history that
indicates a continuous harm resulting from the 1996 incident. It cannot be said that petitioner’s
disability was caused, “as a matter of law,” by the 2006 incident.
Accordingly, it is
ADJUDGED that petition is denied and the proceeding is dismissed.
AP!? 1 9 2012
This ludament has not been entered by the County Clerk
arld notice of entry cannot be served based hereon. TO
W i n entry, counsel o authorized representative muat
appear in pwson at the dwigwmt clerk’s oesk