Opinion
5340 Index 102025/15
01-02-2018
In re Gerard HAYDEN, Petitioner–Appellant, v. William J. BRATTON, etc., et al., Respondents–Respondents.
Ungaro & Cifuni, New York (Nicholas Cifuni of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Ungaro & Cifuni, New York (Nicholas Cifuni of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Richter, J.P., Tom, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered August 12, 2016, which denied the petition to annul respondents' determination, dated August 12, 2015, denying petitioner's application for accidental disability retirement, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to establish a causal connection between his disabling condition, acoustic neuroma, which has not been previously recognized as a "new onset disease[ ]," under Retirement and Social Security Law § 2(36)(c)(v), and his exposure to World Trade Center contaminants (seeMatter of Ryan v. Kelly, 154 A.D.3d 629, 62 N.Y.S.3d 792 [1st Dept. 2017] ; Matter of Stavropoulos v. Bratton, 148 A.D.3d 449, 453, 50 N.Y.S.3d 2 [1st Dept. 2017] ). Petitioner's neuro-oncologist, his only physician to comment on causation, stated that "[i]t is possible that ... exposure may have contributed to pathogenesis." This combination of "possible" and "may" consists of speculation, which, absent explanation or supporting medical, epidemiological, or other evidence, does not satisfy the evidentiary standard for previously unrecognized "new onset diseases" (see Stavropoulos at 453, 50 N.Y.S.3d 2 ). There is no basis to set aside the finding of the Board of Trustees, reached by a tie vote, as a matter of law (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 145, 659 N.Y.S.2d 215, 681 N.E.2d 382 [1997] ).We have considered petitioner's remaining arguments and find them unavailing.