Opinion
2003-04799.
Decided June 7, 2004.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated May 16, 2002, which adopted the recommendation of its Medical Board and denied the petitioner's application for ordinary disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated March 14, 2003, which denied the petition and dismissed the proceeding.
Richard E. Miller, Amityville, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, STEPHEN G. CRANE, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The issue of whether or not the Supreme Court was required to hold a hearing prior to making a determination on the petition was improperly raised for the first time in the petitioner's reply papers, and therefore is not properly before this court ( see McCarthy v. City of New York, 5 A.D.3d 445; Medugno v. City of Glen Cove, 279 A.D.2d 510, 511-512; Cumpston v. Macinowska, 275 A.D.2d 340, 341; Fischer v. Edward M. Weiland, M.D.P.C., 241 A.D.2d 439; cf. Hoffman v. City of New York, 301 A.D.2d 573, 574). In any event, the issue of whether an employee is disabled is determined by the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) ( see Administrative Code of City of New York § 13-167[b]). The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) is bound by a Medical Board finding that an applicant is not disabled for duty ( see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760). The Medical Board's determination is conclusive if it is not irrational, arbitrary, or capricious ( see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139; Matter of Borenstein v. New York City Employees' Retirement Sys., supra at 761; Matter of Barnett v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 264 A.D.2d 840, 841). Here, although the medical conclusions of the petitioner's treating physicians differed from those of the Medical Board, the resolution of such conflicts is within the sole province of the Medical Board ( see Matter of Borenstein v. New York City Employees' Retirement Sys., supra; Matter of Tobin v. Steisel, 64 N.Y.2d 254, 258-259; Matter of Barnett v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, supra at 841; Matter of Santoro v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 217 A.D.2d 660). Based upon the credible evidence before the Medical Board, the determination of the Board of Trustees was neither irrational nor arbitrary or capricious ( see Matter of Borenstein v. New York City Employees' Retirement Sys., supra at 760; Matter of Barnett v. Board of Trustees of N.Y. City Fire Dept., Art., 1-B Pension Fund, supra), and the Supreme Court properly declined to conduct a hearing on this issue.
The petitioner's remaining contentions are improperly raised for the first time on appeal ( see Gardner v. Continuing Dev. Servs., 292 A.D.2d 838, 839, lv denied 98 N.Y.2d 612, cert denied 537 U.S. 1201; Roberts v. Gross, 100 A.D.2d 540, 541; Emmer v. Emmer, 69 A.D.2d 850, 851).
SANTUCCI, J.P., SMITH, CRANE and FISHER, JJ., concur.