Opinion
2014-06-24
In re Joshua KIESS, Petitioner–Respondent, v. Raymond KELLY, etc., et al., Respondents–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for appellants. Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for appellants. Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), for respondent.
ACOSTA, J.P., ANDRIAS, SAXE, FREEDMAN, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered October 15, 2012, granting the petition to annul respondents' determination, dated May 11, 2011, which denied petitioner accident disability retirement pension benefits, to the extent of remanding the matter to the Medical Board for further processing, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78, dismissed.
Petitioner resigned from the New York City Police Department on January 30, 2008. Since there is no evidence that any of the municipal respondents acted in bad faith with respect to petitioner's separation from city service ( see Matter of Bellman v. McGuire, 140 A.D.2d 262, 266, 528 N.Y.S.2d 834 [1st Dept.1988] ), the Board of Trustees was “required by law” to deny his application for accidental disability retirement benefits (Matter of Sheridan v. Ward, 125 A.D.2d 274, 275, 509 N.Y.S.2d 813 [1st Dept.1986], lv. denied69 N.Y.2d 609, 516 N.Y.S.2d 1024, 509 N.E.2d 359 [1987];see Administrative Code of City of N.Y. §§ 13–215, 13–252).
Although respondents could have, but failed to, raise the issue of petitioner's separation from city service during a prior appeal to this Court ( see75 A.D.3d 416, 905 N.Y.S.2d 67 [1st Dept.2010] [Kiess I ] ), the doctrine of res judicata does not preclude them from doing so now, as there has never been a final adjudication on the merits to support application of that doctrine ( see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ). Nor are respondents precluded from raising the issue by the doctrines of collateral estoppel and law of the case. Kiess I was decided solely on the ground of the Medical Board's failure to adequately review petitioner's application. In that prior appeal, no party made an argument based on the effect of petitioner's separation of service, and this Court did not pass on or decide that issue ( see GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985];cf. Scofield v. Trustees of Union Coll., 288 A.D.2d 807, 808, 734 N.Y.S.2d 262 [3d Dept.2001] ).
Even assuming that the elements of equitable estoppel are met here, there is no basis for estopping the municipal respondents from denying petitioner's application, which they are statutorily mandated to do ( see Walter v. City of New York Police Dept., 256 A.D.2d 8, 9, 680 N.Y.S.2d 519 [1st Dept.1998] ).