Russell v O'Neill
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Russell v O'Neill 2020 NY Slip Op 31906(U) June 15, 2020 Supreme Court, New York County Docket Number: 159239/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 159239/2018 RECEIVED NYSCEF: 06/17/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HaN. DEBRA A. JAMES PRESENT: lAS MOTION 59EFM PART Justice X ---------------------------------------------------------------------------- INDEX NO. DANIEL RUSSEll, 159239/2018 MOTION DATE Petitioner, 02/05/2019 MOTION SEQ. NO. 001 -vJAMES P, O'NEill, as Police Commissioner of the City of New York, and as Chairman of the BOARD OF TRUSTEES OF THE POLICE PENSION FUND, KEVIN HOllORAN, as Executive Director of the New York City Police Pension Fund, THE BOARD OF TRUSTEES of the Police Pension Fund, and THE CITY OF NEW YORK, DECISION + ORDER ON MOTION Respondents, --------------------------------------------------------------------------The following e-filed documents, 71,72 X listed by NYSCEF document number (Motion 001) 19, 22, 23, 24, 26, were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) ORDER Upon' the foregoing ORDERED Russell documents, and ADJUDGED the Police Pension application to Article of petitioner Daniel 78 (motion sequence number as follows: (1) The determination NYC that the petition for relief, pursuant 001), is granted it is of respondent Fund, dated August for "retirement Administrative Code ~ 13, 2015, which for accident 13-252 disabilityU, vacated and petitioner's retirement pursuant thereto retroactively to the date of his retirement on April 159239/2018 RUSSELL, DANIEL Motion No. 001 VS. benefits is The Board of Trustees JAMES P. O'NEILL, AS POLICE 1 of 8 denied the pursuant annulled are of to and, awarded 1, 2013; and Page 1 of 8 [*FILED: 2] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 (2) This matter 23, April having on 2019, a judgment awarding peti tioner, having him come motion petitioner the retirement represented in benefits connection Philip H. Seelig, Esq., and the respondents court this before of accidental been on on for and the therewith by having been represented J in connection ~ 4317 (b), therewith the court by Ashima having consider the appointment the of an assessment issue benefi ts in an amount ordinary disability petitioner between, Special pursuant Referee ORDERED Referee of of paid to April 1, 2013, the date of his retirement, and retirement 2013, from which the date the accrued benefits Code amount petitioner actually ~ 13-352, Hearing accidental Officer retirement and to a the date or Special issue: benefits the amount of ordinary retirement was entitled, ("JHO") the following paid to petitioner of accidental is referred was and it is further to determine actually of his the from the amount to which petitioner by subtracting benefits retirement amount a Judicial the to as follows: accidental subtracting to CPLR determined to determine to hear and determine; amount determined retirement by pursuant motion of the accrued to NYC Admin that Esq., own of a referee shall be designated assessment its determined the date of this judgment entitled, on Talwar, in DANIEL VS. between April of this judgment retirement disability pursuant to NYC Admin JAMES P. O'NEILL, AS POLICE 2 of 8 an disability benefits Code 1, to ~ 13- 352; and it is further 159239/2018 RUSSELL, Motion No. 001 an Page 2 of 8 [*FILED: 3] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 ORDERED Referee that this matter Clerk placement Special is hereby (Room 119, 646-386-3028 at the earliest Referees Part Rules of that Part possible available (which are posted JHO/Special or spref@nycourts.gov) (Part SRP), which, this matter to the Special date upon the calendar court at www.nycourts.gov/supctmanh shall assign referred in accordance on the website Referee to determine of the with the of this at the "References" at the initial appearance for link ), to an as specified above; and it is further ORDERED and counsel copy of that counsel for petitioner this order with Special Referee service by electronic Clerk an Information Sheet court's website) and that, Clerk shall as shall advise shall, notice court ORDERED appear (accessible counsel Referees possible, of service Order, submit court filing, with upon counsel of a to proof of link on the called the for therein Special Referee and for respondents of the matter the for respondents, at the "References" thereafter, another of upon the calendar Part; and it is further accompanied hearing, seek to present, or by the court 159239/2018 RUSSELL, Motion No. 001 30 days one entry for petitioner that the parties, they consult all the information as practical for the reference evidence of filing the date fixed for the appearance of the Special within by electronic containing soon immediately including by their counsel, with all witnesses if such "in person" approved DANIEL vs. JAMES P. O'NEILL, AS POLICE 3 of 8 video shall platform, appearance and shall Page 3 of 8 and is be [*FILED: 4] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 ready to proceed with the hearing, on the date fixed by the Special Referee Part, the Clerk for the initial subject Special only appearance to any adjournment Referees Part in the Special that may in accordance with Referees be authorized the by Rules of that by the assigned Part; and it is further ORDERED except above shall proceed accordingly; the Uniform that counsel (available shall file memoranda JHO/Special Referee or other documents in accordance at the "References" link (see Rule 2 of the Uniform Rules); ORDERED and ADJUDGED aforementioned application, Special petitioner, New that York, in accordance Referee, on the recover from with respondent of the Police Pension Fund, Article together with 159239/2018 RUSSELL, Motion No. 001 Electronic and it is further without Trustees 2013, the aforesaid court's the any Report of further having an address at 2570 Foxdale Avenue, shall interest with and the Special by filing same with the New York State Courts Oceanside, and and those of their witnesses Rules of the Judicial Hearing Officers Fi~ing System the their schedules to the assigned Referees from day to day until completion , and it is further ORDERED directed directed Referee for good cause shown, the trial of the issue(s) counsel must arrange website) as otherwise . JHO/Special specified that, Board II, $ at the rate of 9% per annum retirement The of _ from April 1, date, plus costs and disbursements DANIEL VS. JAMES P. O'NEILL, AS POLICE 4 of 8 Page 4 of 8 [*FILED: 5] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 as taxed by the Clerk, and the petitioner in the sum of $ shall have execution therefor DECISION The court petitioner's Retirement benefit shall grant application benefits the respondent(s) retroactively Disability Retirement Justice of this court. stating in pertinent determinations medical the Medical Board's and capricious, further Order dated August issued Russell for is before a an Order "Medical . recommendations Board's . Therefore, were arbitrary a remand of the ADR application v Bratton, 18, 2016, (Sup Ct, NY County, Mendez, J.) the Court of Appeals to be applied by respondents an ADR application for Index No. 102135/2015, in the prior decision, has in stating The award of accidental disability retirement benefits to a NYCERS applicant is a two-step process (see,Administrative Code of City of NY ~ 13-168 [a]). The first step involves fact finding by the NYCERS Medical Board (see also, Administrative Code ~ 13-123 [a] 159239/2018 RUSSEll, Motion No. 001 DANIEL vs. JAMES P. O'NEill, AS POLICE 5 of 8 of Disability based in light of all of the by the Petitioner disapproval set forth the standard considering application part that the respondent warranting review." As stated The prior Justice submitted denial to pay the upgraded (ADR) benefits were not rationally evidence the and prospectively. This is the second time petitioner's Accidental annul for: "line of duty" Accidental and direct to petitioner, petition, Page 5 of 8 [*FILED: 6] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 [composition of Medical Board]). After conducting its own medical examination of the applicant'and considering the evidence submitted in support of the claim, the Medical Board, as a threshold matter, must certify whether the applicant is actually "physically or mentally incapacitated for the performance of cityservice." (Administrative Code ~ 13-168 [a].) If the Medical Board concludes that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disability was "a natural and proxima te result of an accidental inj ury received in such city-service" (id.). Matter of Borenstein 88 NY2d 756, 760 Misc3d (1996); 191,195 speaking, an applicant sustained Retirement of Jefferson v Kelly, Oct 17, 2006) for ADR benefits and that the disability The entirety states see Matter (Sup Ct, NY County, of a disability an injury v New York City Employees' Sys., 14 ("Generally must prove the existence is causally related to in the line of duty) . of the applicable Administrative Code 13-252 as follows: ~ 13-252 Retirement; for accident disability. Medical examination of a member in city-service for accident disability and investigation of all statements and certifications by him or her or on his or her behalf in connection therewith shall be made upon the application of the commissioner, or upon the application of a member or of a person acting in his or her behalf, stating that such me~ber is physically or mentally incapacitated for the performance of city-service, as a natural and proximate result of such city-service, and certifying the time, place and conditions of such cityservice performed by such member resulting in such alleged disability and that such alleged disability was not the result of willful negligence on the part of such member and that such member should, therefore, be retired. If such medical examination and investigation shows that such member is physically or mentally incapacitated for the performance of city-service as a 159239/2018 RUSSEll, Motion No. 001 DANIEL vs. JAMES P. O'NEill, AS POLICE 6 of 8 Page 6 of 8 [*FILED: 7] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of willful negligence on the part of such member and that such member should be retired, the medical board shall so certify to the board, stating the time, place and conditions of such city-service performed by such member resulting in such disability, and such board shall retire such member for accident disability forthwith. The prior remand held that the Medical not disabled remand were here service Board's while of the and causation. the of petitioner's Trustees ADR not established retirement" denial disability respondents' on that Ct, NY was basis legislative Edmead, history 159239/2018 RUSSELL, Motion No. 001 physically in such That and city- is, the established had 13, 2018 meeting Pension that Fund denied petitioner had as of the date of retirement. an was J. ) indicate of error an of arbitrary additional law and and "date therefore capricious. of the The of a Justice of this court in Drew (Index No. 100870/2018, County, Police on the grounds court agrees with the reasoning v O'Neill, NYC imposition requirement of ADR system. at its June upon as a natural retirement petitioner was Board was received the application The Medical injury However, supra) that petitioner of city-service that of v Bratton, petitioner of an accidental disability The based. that determined (Russell determinations not rationally a member Board Board court for the performance result Medical this determined incapacitated proximate by Order dated July, 19, 2019, Sup that that respondents' DANIEL VS. JAMES P. O'NEILL, AS POLICE 7 of 8 subsequent enactments imposition and of an Page 7 of 8 [*FILED: 8] NEW YORK COUNTY CLERK 06/17/2020 09:04 AM INDEX NO. 159239/2018 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/17/2020 additional "date of retirement" to not only also the the plain legislative Administrative Code these provisions created in applications retirement" a In intent. 13-252.1 determination was enacted rebuttable evincing of 2006, law New disability and York but State NYC and While presumptions both any "date of lawmakers causation ADR J'DEBRA ~ t.:" JAMES, CHECK benefits ~""'="o=6!.•••.•...• 4-- ONE: CASE DISPOSED X GRANTED APPLICATION: SETTLE CHECK IF APPROPRIATE: INCLUDES ~ D NON-FINAL GRANTED DENIED DISPOSITION IN PART SUBMIT ORDER ORDER TRANSFER/REASSIGN ~5:t~~~/~~~800~USSELL,DANIEL VS. JAMES P. O'NEILL, AS POLICE 8 of 8 ~ FIDUCIARY . APPOINTMENT of that should be approved. 6/15/2020 DATE of as to causation included the intention 13-252 207-k, in 2008. neither is contrary Code the Municipal for ADR benefits, requirement requirement of Administrative General enacted legislature upon wording disability J:S.C. D o OTHER REFERENCE Page 8 of 8
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