Matter of Titza v Kelly

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Matter of Titza v Kelly 2012 NY Slip Op 32627(U) October 12, 2012 Supreme Court, New York County Docket Number: 111177/2011 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. ..... ANNEDON I011712012 [* 1] - SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Justice' - Index Number : 111177/2011 TITZA, ROBERT - vs. KELLY, RAYMOND SEQUENCE NUMBER : 001 ARTICLE 78 q*+* INDEX NO. MOTION DATE MOTION SEQ. NO. # $" I The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits 5 , were read on this motion tolfor -Affidavits -Exhibits INo(s). 1 2 I IN O W . NOW.^ - Exhibits f - Replying Affidavits Upon the foregoing papers, it is ordered that this motion is / ... ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION I . S/ GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER I CHECK ONE: . NON-FINAL DISPOSITION PENIHI DO NOT POST ~ , J.S.C. G~~NTED IN PART OTHER 0SUBMIT ORDER FlDUCl ARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 x "___~_1__~__________-------------~~------~~~~~--------------------- Index No, 1 1 1 177/11 In the Matter of the Application of: ROBERT TITZA, Argued: Motion Seq. No.: Motion Cal. No.: Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, 6/19/12 00 1 87 DECISION & JUDGMENT -against- RAYMOND KELLY, as the Police Commissioner of the 1. BARBARA JAFFE, JSC: For petitioner: Jeffrey L. Goldberg, Esq. Jeffrey L. Goldberg & Associates, P.C. 200 I Marcus Avenue Lake Success, NY 11042 5 16-775-9400 For respondents: Amy J. Weinblatt, ACC Michael A. Cardozo Corporation Counsel 100 Church Street New York, NY 10007 2 12-676-605 1 By notice of petition dated September 29,201 1, petitioner, a retired New York City Police Officer, moves pursuant to: (1) CPLR 7803 for an order annulling respondent Board of Trustees of the New York City Police Pension Fund's (Board of Trustees) denial of his application for accident disability retirement (ADR) benefits pursuant to the Headstroke Bill, General Municipal Law (GML) 5 207-k, and directing the Board of Trustees to award him ADR benefits retroactive to the date of the denial, or in the alternative, remanding the matter to the Board of Trustees for further review; and (2) pursuant to CPLR 2307(a) for an order directing the Board of Trustees to serve and file certain documents it reviewed in considering petitioner's [* 3] application. Respondents oppose. I. PERTINENT FACTS On July 7, 1999, petitioner joined the New York City Police Department and became a member of the Police Pension Fund. (Ver. Ans,, Exh. 1). On April 18,2007, after having worked 14 of the last 24 hours, petitioner, then 32 years old, suffered multiple strokes. (Ver. Pet., Exh. A). The same day, an application for ADR benefits was submitted on his behalf. (Ver. Ans., Exh. 3). On March 10,2010, after reviewing extensive medical evidence, the New York City Police Pension Fund Medical Board (Medical Board) determined that petitioner was disabled as the result of multiple embolic strokes but ineligible for ADR for the following reasons: The studies of the arteries to the brain revealed no evidence of atherosclerotic disease (blockages) of the main vessels. Therefore, there are no atherosclerotic lesions to precipitate thrombosis or emboli as etiology as the cause of the strokes. Additionally, there is no evidence of hypertension as the etiology of the strokes based on the distributions of the infarctions (strokes) and history. Since the strokes are not related to what has been previously defined under the Heart Bill as stress related[,] namely atherosclerotic and hypertension, the Medical Board finds this competent evidence to rebut the presumption of the Stroke Bill. Additionally, the Medical Board is unaware of any literature relating occupationally related stress to embolic phenomenon in stroke (Ver. Ans., Exh. 6 ) . On July 2 1,2010, after reviewing new medical evidence, the Medical Board upheld its previous determination, noting that the new evidence revealed neither atherosclerosis nor hypertension. (Id,, Exh. 9). Thereafter, it reviewed additional new evidence, including a letter from petitioner s counsel emphasizing his young age and the number of hours he worked before his strokes occurred, and on February 23,201 1 again affirmed its initial determination. (Id.,Exh. 12). 2 [* 4] On June 8,2011, the Board of Trustees denied petitioner s application based on a tie vote. (Id., Exh. 14). 11. ARTICLE 78 PROCEEDING The determination of an ADR application requires two considerations. (Matter o f Borenstein v New York City Empls. Ret. Sys., 88 NY2d 756,760 [ 19961). First, the Medical Board decides whether the applicant is disabled and if so, whether the disability resulted from a service-related accident, certifying its determination to the Board of Trustees. (Id). Second, the Board of Trustees makes its own determination of causation. (Id.). Generally, the Board of Trustees determinations as to ADR benefits eligibility, like most administrative determinations, are reviewed according to the arbitrary and capricious or substantial evidence standards. (Matter ofCar~fora Ed. of Trustees of the Police Pension Fund v o the Police Dept. of the City o New York, Art. Il, 60 NY2d 347,351 [ 19831; Matter of Macri v f f Kelly, 92 AD3d 53,59 [lstDept 201 11). However, where the Board of Trustees denies an application for ADR benefits on the basis of a tie vote, the standard of review is necessarily different. In such circumstances, the reviewing court may not set aside [its] denial of [ADR benefits] . . . unless 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,). Therefore, as long as there was any credible evidence of lack of causation before the Board of Trustees . . . , its determination must stand. (Matter ofMacri, 92 AD3d at 59). The Headstroke Bill provides that if a police officer is disabled as a result of a heart condition or stroke, and if the condition or stroke had not been discovered during his or her physical examination preceding his entry to the force, it is presumed to have resulted from the 3 [* 5] discharge of his or her police duties. (GML 0 207-k). This presumption may be rebutted by a finding that, absent any evidence of hypertension, coronary artery disease, or other stress-related syndrome, the condition or stroke did not result from job-related stress and is of unknown origin. (In re Hogg v Kelly, 93 AD3d 507 [lstDept 20121; Stegmuller v Brown, 216 AD2d 23 [lstDept 19951; Goldman vMcGuire, 101 AD2d 768 [lst Dept 19841, affd64 NY2d 1041 [1985]). Here, absent any evidence reflecting that petitioner suffered from atherosclerosis, hypertension, or any other stress-related heart condition, it may not be determined, as a matter of law, that his strokes resulted from job-related stress. Therefore, the Board of Trustees determination must stand. (See Hogg, 93 AD3d 507 [where Headstroke Bill presumption rebutted by physician s opinion that petitioner s stroke was caused by congenital condition, court noted that second physician s opinion that stroke was of unknown origin would be sufficient by itself to rebut presumption]; Matter of DeMonico v Kelly, 49 AD3d 265 [ lSt Dept 20081 [objective evidence that petitioner s cardiomyopathy was of unknown origin and that, while he had high blood pressure since 2003, it was unlikely that his was the cause of the cardiomyopathy rebutted presumption]; Matter o Walsh v Bd. of Trustees of the N. I City f : Police Dept., 37 AD3d 370 [lstDept 20071 [presumption rebutted where medical evidence demonstrated that petitioner s dilated cardiomyopathy was not accompanied by stress-related coronary artery disease or hypertension, and the conclusion of various doctors that petitioner s disabling condition was of unknown origin ]; Matter of Hutnik v Kelly, 37 AD3d 346 [ lstDept 20073 [presumption rebutted by objective medical evidence that petitioner did not suffer from hypertension and absence of evidence of any other possible cause for the condition ]). Petitioner s age and the number of hours he worked before the strokes provide no basis for 4 [* 6] vacating the determination, as the Medical Board considered his counsel s letter addressing these circumstances in making its determination, and the limited scope of my authority precludes me from weighing the evidence. 111. CPLR 2307(a) MOTION As respondents annexed these documents to their answer (Ver. Ans., Exhs. 15-52), this portion of petitioner s application is moot, Accordingly, it is hereby ORDERED and ADJUDGED, that the petition is denied in its entirety and the proceeding is dismissed. ENTER: DATED: October 12, 20 12 New York, New York UNFILED JUDGMENT Thls Judgment has not been entered by the Couhty Clerk and notice of entry cannot be served based hereon. To Qhk!h W&& W.UiW4 W representativemust h~atIheJkac@mtClerk S Desk(R00m 5

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