Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II

Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II 2011 NY Slip Op 05860 Decided on July 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2011
Tom, J.P., Saxe, Acosta, Freedman, JJ.
5195 115266/09

[*1]In re Karen Bitchatchi, Petitioner-Respondent

v

Board of Trustees of the New York City Police Department Pension Fund, Article II, Respondent-Appellant.



 
Michael A. Cardozo, Corporation Counsel, New York (Keith M.
Snow of counsel), for appellant.
Rosemary Carroll, Clermont, for respondent.

Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered April 16, 2010, which granted the petition brought pursuant to CPLR article 78 seeking, inter alia, to annul the determination of respondent denying petitioner accident disability retirement (ADR) benefits and found that petitioner was entitled to the greater benefit as a matter of law and remanded the matter to respondent to grant the petitioner the ADR pension and to recompute petitioner's retirement allowance, unanimously affirmed, without costs.

Supreme Court properly determined that respondent failed to rebut with credible evidence the presumption of Administrative Code of the City of New York § 13-252.1, that petitioner's cancer was caused by her service at the World Trade Center site in the days immediately following September 11, 2001 (see generally Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]; compare Matter of Jefferson v Kelly, 51 AD3d 536 [2008]). There is no credible evidence to support the Medical Board's assertion that the size of tumor meant it began growing before September 11, 2001, and thus could not have been the result of or exacerbated by exposure. Nor is there credible evidence to support the Medical Board's conclusion that petitioner's cancer was caused by her episode of ulcerative colitis and the corrective surgery, which occurred nearly 20 years prior to the onset of the cancer.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2011 [*2]

CLERK