Matter of Conenna v Kelly

[*1] Matter of Conenna v Kelly 2010 NY Slip Op 51131(U) [28 Misc 3d 1203(A)] Decided on June 9, 2010 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2010
Supreme Court, New York County

In the Matter of the Application of Anthony Conenna, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

against

Raymond Kelly, as the Police Commisssioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, THE BOARD OF TRUSTEES of the Police Pension Fund, Article II, New York City Police Department and THE CITY OF NEW YORK, Respondents.



115492/09



For Petitioner:

Jeffrey L. Goldberg, P.C.

By Jeffrey L. Goldberg, Esq.

2001 Marcus Avenue

Lake Success, New York 11042

516-775-9400

For Respondent:

Michael A. Cardozo, Esq.

Corporation Counsel of the City of New York

By Jeremy I. Huntone, Esq.

100 Church Street, Room 5-149

New York, New York 10007

212-788-0989

Saliann Scarpulla, J.

Petitioner Anthony Conenna ("Conenna") brings this Article 78 petition to annul the denial by respondents (herein collectively as "the Board") of his accident disability [*2]retirement allowance ("ADR") pursuant to the Administrative Code § 13-252.1. Conenna argues that the Board's determination was arbitrary and capricious and further asks the Court for a judgment directing the Board to retire him with a line of duty ADR retroactive to the date of his retirement. Conenna also seeks a subpoena pursuant to CPLR 2307 directing service of the record and minutes of the proceedings below; however, that branch of the petition is moot based on the documents annexed to the Board's papers.

Conenna has been an uniformed officer of the New York Police Department ("NYPD") since August 30, 1993. At the time of his appointment, Conenna passed all physical and mental examinations and demonstrated both physical and mental fitness to perform full duties as a police officer. On October 20, 2006, Conenna filed an ADR application alleging that he was disabled from performing police duties due to psychological troubles he developed as a result of participating in the World Trade Center rescue, recovery and clean-up operations on and after the terrorist attacks of September 11, 2001.[FN1]

On March 13, 2007, the Police Commissioner signed an Ordinary Disability Examination Order directing the Board to examine petitioner and his medical record in order to determine whether he was disabled from performing police duties by a psychological condition, warranting Ordinary Disability Retirement ("ODR").

On April 9, 2007, the Board interviewed and examined petitioner based on both petitioner's application for ADR and the Police Commissioner's Examination Order for ODR. The Board issued a unanimous opinion granting only ODR disability and agreeing with one of Conenna's medical diagnoses, Personality Disorder NOS. The Board's decision did not mention or consider the fact that Conenna participated in the rescue and recovery operations at the World Trade Center ("WTC") site, or the effect Conenna's WTC work had on his ADR application pursuant to Administrative Code 13-252.1. (Resp's Ex. 7).

In its April 9, 2007, the Board relied on a letter opinion by an NYPD psychologist Melissa Bochicchio, dated February 22, 2007, which she issued in response to Conenna's ADR application. In the letter opinion, Bochicchio did not in any respect explore the extent and nature of Conenna's involvement with the WTC recovery site, but nevertheless concluded that the WTC work did not have any emotional impact on Conenna. In the most relevant part, Bochicchio concluded the following:

"He [Conenna] has attempted to portray his symptoms as resulting from 9/11 and this does not appear to be the case. Instead, his problems arose in childhood, and he had [*3]problems concentrating and controlling his anger throughout his childhood and teenage years. These difficulties persisted into adulthood and he has been receiving treatment intermittently since 1998. P.O. Conenna suffers from a pervasive pattern of depression, anger, impulsivity, and interpersonal difficulties, a pattern that has been observed by his treatment providers, a prior PES evaluator, and this writer." (Resp's Ex.5).

From April 20 to April 24, 2007, Conenna was hospitalized at St. Luke's Cornwall Hospital for psychiatric assessment and stabilization. Conenna was then hospitalized at

Four Winds Hospital from April 25 to May 2, 2007 for further psychiatric assessment, with a recurrent hospitalization from May 29 to June 4, 2007, necessitated by "extreme depression with vegetative immobilization and even worsening hopelessness nearing suicidal rage." (Pet. Ex. E, p. 5).

At Four Winds, psychiatrist Dr. Davis diagnosed Conenna with depression and bipolar disorder. The psychiatric assessment at the time of the second admission at Four Winds described Conenna's condition as "long hx affective reactivity made much worse by 9/11 with manifest manic behavior. Now depressed." (Pet. Ex. E, p.1). Conenna was hospitalized at Four Winds a third time between August 29 and September 12, 2007 for feelings of depression and suicidal ideations (Pet. Ex. F). Conenna has also submitted two reports issued by Drs. Jeffrey M. Rubin and Todd Rochman in January, 2008. Both doctors concluded that Conenna was severely depressed and unable to perform any work. (Pet. Exs. G, H).

Conenna filed a "Notice of Participation in the World Trade Center Rescue, Recovery or Clean-Up Operations" on June 6, 2007. On August 15, 2008, Conenna's attorney requested that the Board upgrade Conenna's disability application to ADR pursuant to Administrative Code 13-252.1. The Police Department certified the accuracy of the notice and that Conenna worked no less than forty hours at the designated site.

By decision dated August 18, 2008, the Board reaffirmed its previous decision. This decision differed from the prior one only to the extent that it expressly restated relevant parts of Bochicchio's letter opinion in support of its conclusion that Conenna's prior psychological history "provide[d] competent evidence to rebut the presumption of the World Trade Center Bill." (Resp's Ex.15).

Discussion

ADR benefits are provided to members of the New York City police force who become "physically or mentally incapacitated from the performance of city-service as a natural and proximate result of an accidental injury received in such city-service while a member," if such disability was not the result of willful negligence on the part of the applicant. Administrative Code § 13-252. If a line-of-duty injury either precipitates the development of a latent condition or aggravates a preexisting condition, resulting in a disability, the disabled member is entitled to ADR. See Matter of Tobin v Steisel, 64 NY2d 254, 259 (1985) (applying a tort-based proximate cause standard to ADR [*4]applications).

In an Article 78 proceeding challenging an administrative determination denying ADR benefits, "as long as there was any credible evidence of lack of causation, [the Board's] determination must stand . . ." Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., 90 NY2d 139, 145 (1997). Credible evidence is evidence that tends to support the proposition for which it is offered and is "evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion." Matter of Meyer, 90 NY2d at 147; see also Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 761 (1996). In Matter of Meyer, the Court of Appeals found that a report by a single medical expert, who never examined the applicant, was sufficient credible evidence to permit the Board to discount other expert opinions provided by treating physicians, because the report contained "an articulated, rational, and fact-based medical opinion." Matter of Meyer, 90 NY2d at 148.

Generally, the applicant for ADR benefits has the burden of establishing that a causal relationship exists between the service-related accident and the claimed disability. See Matter of Draves v Bd. of Trustees, 203 AD2d 568, 569 (1994). However, after the tragedy of terrorist attacks on the World Trade Center of September 11, 2001, and in recognition of the brave and valorous actions by the men and women of the NYPD who responded to the terrorist attacks despite the obvious and substantial risk to their own safety, the New York City Council enacted the Administrative Code § 13-252.1. Paragraph "a" of this section provides for the World Trade Center presumption of causation:

"notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence."

Administrative Code § 13-252.1(a).

Under Administrative Code § 13-252.1(a), the Board bears the burden of developing a factual record and proffering competent medical evidence to rebut the WTC presumption. If the Board's rebuttal of the presumption carries evidentiary support, and is not merely conclusory, the reviewing court must defer to the Board. See Matter of Mulet v Kelly, 2006 NY Slip. Op. 30186(U), *6-11 (Sup. Ct., New York County 2006, DeGrasse, J.), aff'd 49 AD3d 336 (1st Dep't 2008); see also Matter of Jefferson v Kelly, 14 Misc 3d 191, 197 (Sup. Ct., New York County 2006, Wilkins, J.), aff'd 51 AD3d 536 (1st Dep't 2008).

If, however, the Board's decision lacks substance and is simply a recitation of the [*5]statutory language in place of premise and conclusion, the court may refer the case back to the Board for further, careful consideration. See Matter of Colon v Kelly, 2010 NY Slip. Op. 31211(U), *5 (Sup. Ct., New York County 2010, Lobis, J.); see also Matter of Flynn v Kelly, 17 Misc 3d 1125A, *5-6 (Sup. Ct., New York County 2007, Madden, J.).

In this case, the Board does not dispute that the WTC presumption of disability applies to Conenna's ADR application, because he has a qualifying psychological condition as defined in Retirement and Social Security Law § 2(36)(d) and because Conenna had no less than forty (40) hours of qualifying service in the WTC rescue, recovery or clean-up, as required by Social Security Law § 2(36)(g).[FN2] The Board, however, made no mention of the WTC presumption in the April 9, 2007 decision, and did not indicate how the presumption was rebutted.[FN3]

In January, 2008, the Board voted to remand Conenna's ADR application for reconsideration. On August 15, 2008, Conenna's attorney requested that the Board consider Conenna's submitted evidence, all of which showed him with a depressive disorder, in light of the WTC Disability Bill's presumption that Conenna's disability was incurred in the performance of his duty as a police officer. The Board conducted a review and issued another decision on August 18, 2008. The Board's second decision mirrored the first with the exception of an additional paragraph that quoted a few sentences from Bochicchio's letter opinion and the conclusion that the evidence rebuts the WTC presumption.

While the Board is entitled to rely on the opinion of its own expert, a review of Bochicchio's opinion shows that Bochicchio did not investigate the nature of Conenna's work at the WTC site or the extent to which Conenna was exposed to the psychological trauma at the site. Bochicchio's treatment of Conenna's WTC work is limited to a one-sentence conclusion that "[h]e [Conenna] has attempted to portray his symptoms as resulting from 9/11 and this does not appear to be the case." Bochicchio's entire opinion is predicated upon her assertion that Conenna's childhood and adolescent conflicts were more emotionally damaging to Conenna than what he witnessed at the WTC site.

In her report, Bochicchio does not explain, or even address, how Conenna was able to successfully perform as a police officer prior to working at the WTC site. Nor does she consider whether any latent depressive tendencies were brought out or exacerbated by Conenna's work at the WTC site. Without any proper explanation, Bochicchio's assertion that Conenna's depression is unrelated to his work at the WTC site appears arbitrary, [*6]especially because there is no dispute that Conenna was determined to be both physically and emotionally fit when he was hired in 1993, by which time the childhood conflicts were supposed to have already developed and should have been apparent.

Bochicchio's conclusory report is in stark contrast to the very thorough review undertaken in Matter of Mulet, where NYPD psychologists successfully rebutted the WTC presumption after evaluating the police officer for six months, conducting several psychological tests and taking numerous interviews with the police officer, his colleagues and family members. Matter of Mulet v Kelly, 2006 NY Slip. Op. 30186(U), *6-11 (Sup. Ct., New York County 2006, DeGrasse, J.). The experts in Matter of Mulet also took into account that the officer worked at the WTC Family Center, not the actual site of the terrorist attacks. Id. Upon review, Bochicchio's letter opinion falls short of "an articulated, rational, and fact-based medical opinion" that can support the Board's determination. See Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., 90 NY2d 139, 148 (1997).

Here, the Board has not demonstrated a sufficient review of Conenna's work at the WTC site and how it influenced his emotional well-being. The fact that Conenna had experienced emotional difficulties before working at the WTC site does not, standing alone, rebut the WTC presumption of proximate cause, as the WTC work could have very well aggravated his preexisting conditions. See c.f., Matter of Tobin v Steisel, 64 NY2d 254, 259 (1985); see also Matter of Kringdon v Kelly, Index No.101941/2006 (Sup. Ct., New York County 2006, Gische, J.). To deny Conenna ADR, the Board bears the burden to rule out WTC work as a contributing factor after an adequate and competent evaluation of all relevant facts and Conenna's emotional condition. Therefore, this matter must be remanded to the Board for a new evaluation of petitioner's application for ADR.

In accordance with the foregoing, it is

ORDERED and ADJUDGED that the petition is granted to the extent of annulling the findings of the Medical Board and the Board of Trustees with respect to the disapproval of the petitioner's application for Accident Disability Retirement, and requiring the Medical Board to conduct a further evaluation of petitioner's application for Accident Disability Retirement consistent with the Court's opinion; and the petition is otherwise denied.

This constituted the Decision, Order, and Judgment of the Court.

Dated: June 9, 2010___________________________

Saliann Scarpulla, J.S.C. Footnotes

Footnote 1:Conenna had filed previously on June 24, 2004 a separate application for ADR disability on the basis of orthopedic and neurological injuries. That application is not germane to this petition.

Footnote 2:It also undisputed that Conenna is disabled.

Footnote 3:While Conenna filed a Notice of Participation after the April 9, 2007 denial of ADR, the Board never argued that this notice is a necessary requirement for the entitlement to the WTC presumption. Further, the record reveals that in his ADR application, dated October 20, 2006, Conenna expressly asserted that his WTC work caused his alleged disability.