Matter of Devers v Kelly
Annotate this CaseDecided on January 8, 2014
Supreme Court, New York County
In the Matter of the Application of Jasmine Devers, Petitioner,
against
Raymond W. 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, The Board of Trustees of the Police Pension, Fund, Article II and The City of New York, Respondents.
100850/13
Alexander W. Hunter Jr., J.
The application of petitioner for a judgment pursuant to CPLR Article 78, annulling the determination of respondents denying the application of petitioner for accident disability retirement ("ADR") benefits, is denied and the proceeding is dismissed without costs and disbursements to either party. The motion by respondents to dismiss the petition is granted.
Petitioner was appointed as a uniformed police officer in the New York City Police Department ("NYPD") on January 9, 2006 and served continuously until she retired on ordinary disability. On November 12, 2010, petitioner fell down stairs that had been recently painted at the 26th precinct, causing injury to her lower back and right shoulder. A line of duty report was completed by petitioner and her supervisor. Petitioner underwent two surgeries to her right shoulder and required physical therapy thereafter. NYPD surgeon Peter Galvin, M.D., filed a survey noting that the prognosis of petitioner for returning to full duty was poor without additional surgery.
On May 15, 2012, petitioner filed an application for ADR benefits (the "ADR application"). Petitioner was examined by the Medical Board for respondent Police Pension, Fund, Article II (the "Medical Board"). The Medical Board determined that petitioner was disabled from performing the full duties of a police officer and recommended approval of the ADR application.
The Board of Trustees of respondent Police Pension, Fund, Article II (the "Board of Trustees") discussed the ADR application of petitioner on February 13, 2013. At the meeting, a consultant for the police benevolent association presented a copy of the work order to paint the [*2]stairs at the 26th precinct dated October 12, 2010 (the "subject work order"). Consideration of the ADR application was tabled until March 13, 2013, at which time, further discussion occurred regarding the subject work order. The Board of Trustees also focused on the fact that the line of duty report contained inconsistent statements. Petitioner claimed that she fell because the stairs were freshly painted and tacky, while her supervisor stated "[t]he paint appear[ed] to be dry." (Respondents' exhibit B).
The Board of Trustees was unable to reach a majority vote on the issue of whether the injury was the result of an accident or incident. The vote to approve the ADR application was split six-to-six. On April 10, 2013, the Board of Trustees denied the ADR application of petitioner and a resolution was passed awarding petitioner ordinary disability retirement ("ODR") benefits.
Petitioner avers that the action of the Board of Trustees was contrary to governing law and that the Board of Trustees failed to apply the proper standard of "accident" applicable in the circumstances.
Respondents move to dismiss the petition on the ground that petitioner failed to meet her burden of establishing that she was injured as a result of a service-connected accident.
The denial of accidental disability benefits as a consequence of a tie vote of the Board of Trustees can be set aside on judicial review only if the court concludes that the retiree is entitled to greater benefits as a matter of law. "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, the decision of the board of trustees denying accidental disability benefits as a consequence of a tie vote must stand." See Canfora v. Board of Trustees, 60 NY2d 347, 352 (1983); Bisiani v. Kelly, 39 AD3d 261 (1st Dept. 2007). The burden is on the applicant to establish that his or her disabling injury constitutes an accident for ADR purposes. Danyi v. Board of Trustees of New York City Emples. Ret. Sys., 176 AD2d 451 (1st Dept. 1991). Where conflicting accounts of an accident are presented, a petitioner fails to demonstrate as a matter of law that the disabling injury was the product of a service-related accident. See Bisiani, 39 AD3d at 261; Danyi, 176 AD2d at 451.
Pursuant to the Administrative Code § 13-252, ADR benefits requires an applicant establish that he or she is "a member in city-service" who "is physically or mentally incapacitated for the performance of city-service, as a natural and proximate result" of an "accidental" injury received in city-service. The determination of physical incapacity shall be made by the Medical Board. See Borenstein v. New York City Emples. Ret. Sys., 88 NY2d 756, 760 (1996). While the disability determination of the Medical Board is binding on the Board of Trustees, the issue of causation shall be determined by the Board of Trustees. See Id.; Canfora, 60 NY2d at 351.
While not specifically defined by Administrative Code § 13-252, the term "accident" has been construed to mean an event that is "sudden, fortuitous mischance, unexpected, out of the [*3]ordinary, and injurious in impact." Lichtenstein v. Board of Trustees, 57 NY2d 1010 (1982). However, "[n]ot every line of duty injury will result in an award of accidental disability." McCambridge v. McGuire, 62 NY2d 563 (1984). "[I]njuries sustained while performing routine duties but not resulting from unexpected events" are not within the definition of "accident." Id. at 568. "A fall down the stairs as a result of one's own misstep, without more, is not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law." Starnella v. Bratton, 92 NY2d 836, 839 (1998).
It is uncontested that petitioner sustained an injury to her right shoulder while walking down the stairs at the 26th precinct. Inasmuch as the fact of disability is not in dispute, petitioner is entitled to ODR benefits. Although the Medical Board recommended approval of the ADR application, the Board of Trustees was not bound thereby insofar as the cause of the disability. As there were divergent accounts of the incident, petitioner failed to carry her burden that her injuries were the product of a service-related accident and not the product of her own misstep. Accordingly, this court sustains the decision of the Board of Trustees denying petitioner ADR benefits.
Accordingly, it is hereby
ADJUDGED the application of petitioner for a judgment pursuant to CPLR Article 78, annulling the determination of respondents denying the application of petitioner for ADR benefits, is denied and the proceeding is dismissed without costs and disbursements to either party. The motion by respondents to dismiss the petition is granted.
Dated: January 8, 2014
ENTER:
________________________
J.S.C.
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