Opinion
2012-03-15
In re Daniel HOGG, Petitioner–Appellant, v. Raymond KELLY, as Police Commissioner of the City of New York, etc., et al., Respondents–Respondents.
Jeffrey L. Goldberg, P.C., Lake Success (Jeffrey L. Goldberg of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Keith M. Snow of counsel), for respondents.
Jeffrey L. Goldberg, P.C., Lake Success (Jeffrey L. Goldberg of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Keith M. Snow of counsel), for respondents.
MAZZARELLI, J.P., FRIEDMAN, RICHTER, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered May 10, 2010, denying the petition seeking, inter alia, to annul a determination of respondent Board of Trustees, which denied petitioner's application for accidental disability retirement benefits and granted him ordinary disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination that petitioner's condition was not incurred in the line of duty had a rational basis. The evidence included the opinion of petitioner's treating cardiologist that petitioner's stroke was “associated with” congenital heart defects which made a “presumptive diagnosis of paradoxical embolism a leading explanation for his stroke.” Such evidence sufficed to rebut the statutory presumption set forth in General Municipal Law § 207–k ( see Matter of Higgins v. Kelly, 84 A.D.3d 520, 921 N.Y.S.2d 856 [2011], lv. denied 18 N.Y.3d 806, 2012 N.Y. Slip Op. 63959, 2012 WL 444070 [2012]; Matter of Simmons v. Herkommer, 98 A.D.2d 651, 652, 469 N.Y.S.2d 402 [1983], affd. 62 N.Y.2d 711, 476 N.Y.S.2d 531, 465 N.E.2d 38 [1984] ). Moreover, the opinion of petitioner's treating vascular neurologist, who opposed the determination that the stroke was related to petitioner's heart defects, was that the stroke was of unknown origin. A finding of unknown origin itself rebuts the statutory presumption that the disabling condition was incurred in the line of duty ( see Matter of Goldman v. McGuire, 101 A.D.2d 768, 769, 475 N.Y.S.2d 849 [1984], affd. 64 N.Y.2d 1041, 489 N.Y.S.2d 467, 478 N.E.2d 983 [1985]; see also Matter of Gumbrecht v. McGuire, 117 A.D.2d 531, 533, 498 N.Y.S.2d 809 [1986] ).