Matter of Frezzell v Kelly

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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 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. SCANNED ON412312012 [* 1] I SUPREME COURT OF THE STATE OF NEW YORK . Index Number : 110194/2011 FREZZELL, KENT PART .3A vs KELLY, RAYMOND INDEX NO. Sequence Number : 001 MOTION DATE ARTICLE 78 MOTION SEQ. NO. The followlng papem, numbered 1 to Notlcs of MotIonlOrdsr to Show Cause Answsrlng Affldavlb , were read on thin motion tolfor - Amdrvlb - ExhiblG IWd. IN O W IN O W - - Exhiblb Replying AffldaviG Upon the foregoing papers, It is ordered that t b h- UNFILED JUDGMENT T l judgment has not b w n entered by the County ClaQE hs and noti& of entry cannot be served based ~MWL O T obtain entry, counsel or authorized represantativla i m d m r in perw#l atthe J W ~ ~ m e n t C l w k ' s a a J r ~ , 1418). Dated: 3. s J.S.C. ..................................................................... CASE DISPOSED NON-FINAL DISPOSITION 0DENIED 0GRANTED IN PART 0OTHER CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S SUBMIT ORDER CHECK IF APPROPRIATE: ................................................ m S m L E ORDER TJ DO NOT POST IJ FIDUCIARY APPOINTMENT REFERENCE I.CHECK ONE: 2. APR 1 9 2012 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : PART 32 In the Matter of the Application of KENT FREZZELL, Index No. 110194/11 Petitioner, : For a Judgment under Article 78 of the Civil Practice Law : and Rules, UNFILED JUDGMENT 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 or RAYMOND KELLY, as the Police Commissioner of t w Desk (f3mm 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, Respondents. : ________________________________l__r__r_------------------------------- X 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 [1945]). 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. [* 3] 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 [* 4] 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 c J 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, at 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 -3- [* 5] 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. Dated: AP!? 1 9 2012 CAROL,.. . . HUFF UNFILED JUDGMENT 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 r 4 appear in pwson at the dwigwmt clerk s oesk 1418). -4-

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