Matter of Ball v Kelly

Matter of Ball v Kelly 2006 NY Slip Op 09507 [35 AD3d 267] December 19, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

In the Matter of William Ball, Appellant,
v
Raymond Kelly, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.

—[*1]Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered September 19, 2005, denying the petition and dismissing this CPLR article 78 proceeding, unanimously affirmed, without costs.

It cannot be determined, as matter of law, that the disability was a natural and proximate result of a service-related accident (see Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347 [1983]). While petitioner's hearing loss did result from an acute injury, the record supports the finding that he was performing routine duties at the time of his injury (see e.g. Matter of McDonald v Regan, 174 AD2d 940 [1991], lv denied 78 NY2d 859 [1991]). Concur—Buckley, P.J., Tom, Mazzarelli, Friedman and McGuire, JJ.