Opinion
10603/15
01-08-2018
Minisa MARTIN, Plaintiff, v. N.Y.C. EMPLOYEES RETIREMENT SYSTEM (NYCERS), New York City Department of Sanitation, and NYCERS Medical Board, Defendants.
Minisa Martin, Pro Se Petitioner Zachary W. Carter, Corporation Counsel of The City of New York, 100 Church Street, New York, NY 10007, (212) 356–3210, Attorney for Respondents.
Minisa Martin, Pro Se Petitioner
Zachary W. Carter, Corporation Counsel of The City of New York, 100 Church Street, New York, NY 10007, (212) 356–3210, Attorney for Respondents.
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and petition of Minisa Martin (hereinafter Martin), filed on April 27, 2017, under motion sequence number one, for an order reversing the decision of the N.Y.C. Employees Retirement System (hereinafter NYCERS), New York City Department of Sanitation, and NYCERS Medical Board (hereinafter the City Respondents) to deny Martin accidental disability retirement (hereinafter ADR) benefits.
Notice of petition
Verified Petition
Verified Answer
Exhibits A-BB
Memorandum in support of the City Respondent's verified answer
Martin's Reply papers
BACKGROUND
By notice of petition and verified petition dated November 12, 2013, Martin commenced an Article 78 proceeding in New York County under index number 101491/2013 seeking a judgment vacating the administrative determination issued by NYCERS dated July 12, 2013 and directing NYCERS to issue her ADR benefits. Martin filed an amended notice of petition on April 14, 2014. By stipulation dated July 3, 2014, Martin and the respondents agreed to transfer to Kings County the Article 78 aforementioned proceeding pending in New York County because Kings County was the judicial district in which NYCERS made the determination. On August 2015, the transfer to Kings County occurred and index number 10603/2015 was assigned to the instant matter.
By verified answer dated June 1, 2017, the City Respondent's joined issue. The City Respondent's verified answer contains forty nine allegations of fact and seven affirmative defenses.
Martin's notice of petition, verified petition and accompanying document seeks to vacate and reverse a decision by the City Respondents to deny her application for ADR benefits. Martin's commencement papers, however, are not supported by any affidavits, factual allegation, citation to legal authority or argument explaining her entitlement to the relief sought. It is petitioner's burden to establish that her injuries resulted from an accident as defined in the context of ADR ( Pastalove v Kelly , 120 AD3d 419 [1st Dept 2014], citing, Matter of Brown v Kelly , 100 AD3d 480 [1st Dept 2013] ). The petitioner also has the burden to show that the determination of the City Respondent was improper, arbitrary and capricious. Based on the papers submitted, Martin could not and did not meet that burden.
The City Respondent's verified answer, however, contained allegations of fact, supporting documentation, legal arguments and citations setting forth the basis for their determination. The verified answer established the following uncontroverted facts, among others.
UNCONTROVERTED FACTS
On July 10, 2006, Martin became a member of NYCERS after being appointed as a Sanitation Enforcement Agent with the New York City Department of Sanitation (hereinafter DOS) . On December 16, 2011, DOS submitted an agency report (hereinafter agency report) to NYCERS about an accident that Martin was involved in. The agency report stated that on December 30 , 2010, Martin slipped on ice and sustained an ankle injury.
The City Respondents annexed as exhibits copies of every document referred to in the following allegations of fact.
Although the report erroneously stated that the incident occurred on December 30, 2010, there is no dispute that the incident actually occurred on December 29, 2010. The error is disregarded.
On December 27, 2011, Martin filed an application for ADR pursuant to Section 605 of the RSSL with NYCERS. In conjunction with her application, Martin completed the required Applicant's Report of Personal Disability (Form No. 605) and NYCERS questionnaire (Form # 609). Therein, Martin complained that while she was working on snow duty she sustained injuries to her right and left hand, forearm and elbow, as well as an injury to her right leg and foot. Subsequently, DOS submitted to NYCERS a completed Employee Accident Statement (hereinafter employee's report); a DOS Unusual Occurrence Report and DOS Enforcement—Report of Assault/Incident; each dated December 29, 2010. DOS also submitted a supervisor's/agency—report of injury (hereinafter employer's report), dated January 1, 2011.
The Employer's Report stated that Martin's supervisor did not see the incident take place; that Martin allegedly slipped on ice and fell face down, hitting her knees and twisting her ankle while trying to break her fall; that Martin was unable to get up, and that she was assisted by sanitation worker David Bonnell and by a sanitation chief.
By letter dated January 3, 2012, NYCERS informed Martin that it had received her application for ADR but that additional evidence was needed. Specifically, NYCERS requested: (1) office records from Dr. Eberle; (2) office records from her treating neurologist, psychiatrist, and physical therapists; (3) results of EMG/NCV studies (if done); and (4) MRI films of her knee and ankle. By letter dated April 4, 2012, NYCERS informed Martin that additional information was needed for her application for ADR.
On July 23, 2012, Martin was interviewed and examined by the Medical Board. Following the interview, examination, and review of the medical reports, the medical board found that Martin was disabled from performing the duties of a sanitation enforcement agent due to CVA with sequelae , and concluded that her disability was not casually related to the incident on December 29, 2010. The Medical Board further found that the incident failed to qualify as an accident and therefore recommended that Martin's application for ADR be denied.
According to footnote number 5 contained in paragraph 21 of the City Respondents' answer, CVA refers to Cerebrovascular accident which is another medical term for a stroke.
According to footnote number 6 contained in paragraph 21 of the the City Respondents' answer, sequelae is any abnormal condition that is the consequence of a previous disease or injury.
By letter dated August 9, 2012, NYCERS informed Martin that the Medical Board had recommended that her application for ADR be denied. NYCERS further informed Martin that she would be given an opportunity to appeal this recommendation before the NYCERS' Board of Trustees (hereinafter Board of Trustees).
On March 14, 2013, Martin appeared before the Board of Trustees to appeal the Medical Board's recommendation. After reviewing Martin's case, the Board of Trustees remanded the matter back to the Medical Board for additional review. By letter dated June 25, 2013, NYCERS informed Martin that her case would be presented at the July 11, 2013 Board of Trustees meeting for discussion only.
By letter dated July 12, 2013, NYCERS notified Martin that the Board of Trustees had adopted the recommendation of the Medical Board denying Martin's application for ADR. The letter further informed Martin that she could challenge the determination by commencing an Article 78 proceeding within four months from the date of the receipt of the letter.
LAW AND APPLICATION
The Medical Board of NYCERS determines whether a member applying for accidental disability retirement benefits is disabled (see Administrative Code of City of NY § 13—167[b]; Vargas v New York City Employees' Retirement System , 95 AD3d 1345 [2nd Dept 2012] ). The Board of Trustees of NYCERS (hereinafter the Board of Trustees) is bound by the Medical Board's determination as to whether an applicant is disabled ( Vargas , 95 AD3d 1345, citing Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1—B Pension Fund , 90 NY2d 139, 144 [1997] 88 NY2d 756, 760 [1996]; Matter of Zamelsky v New York City Employees' Retirement Sys. , 55 AD3d 844, 845 [2nd Dept 2008] ).
The Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational ( Vargas , 95 AD3d 1345, citing Matter of Meyer , 88 NY2d at 761 ; Matter of Zamelsky , 55 AD3d at 845 ; Matter of Suppan v New York City Employees Retirement Sys. 37 AD3d 474, 475 [2nd Dept 2007] ). In the context of ADR benefits, the Court of Appeals has defined an accident as a " ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,’ " while " ‘an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury’ " ( Pastalove v Kelly , 120 AD3d 419 [2nd Dept 2014], citing Matter of Kenny v DiNapoli , 11 NY3d 873, 874 [2008], quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II , 57 NY2d 1010, 1012 [1982] ).
It is Martin's burden to establish that her injuries resulted from an accident as defined in the context of ADR ( Pastalove , 120 AD3d 419, citing Matter of Brown v Kelly , 100 AD3d 480 [1st Dept 2013] ).
After conducting a medical examination of Martin and reviewing all medical reports and records she submitted, the Medical Board determined that Martin's injury was not caused by the December 29, 2010 accident within the meaning of Retirement and Social Security Law § 605—b. Rather, the Medical Board determined that her disability injury was caused by a CVA and its sequelae unrelated to the accident of December 29, 2010. On that basis the City Respondents through NYCERS denied Martin's application for ADR benefits.
It is axiomatic that in an Article 78 proceeding the court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see e.g. Pell v Bd. of Educ. , 34 NY2d 222, 230—231 [1974] ). Thus, in an Article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary and capricious ( Matter of Borenstein , 88 NY2d 756, 760 [1996] ). If the Medical Board's determination is reasonably based in the record, it will not be considered to lack a rational basis or to be arbitrary or capricious (Id. ). In the context of a Medical Board determination, such finding will be sustained if there is some credible evidence that supports the Medical Board's determination (Id.; see also Matter of Kuczinski v Board of Trustees of New York City Fire Dept., Art.1—B Pension Fund , 8 AD3d 283, 284 [2004] ). If the evidence reviewed by the Medical Board is subject to conflicting interpretations, the Medical Board alone has the authority to resolve the conflict ( Matter of Borenstein , 88 NY2d at 761 ). A court may not substitute its own judgment for that of the Medical Board (Id. ).
"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 city-service" ( Id. at 760, quoting 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 proximate result of an accidental injury received in such city-service" (Id. ). The "Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence" ( Id. at 761 ), which in disability cases has been construed to require "some credible evidence" (Id. ). With respect to this standard, the required quantum of credible evidence has been found lacking when the denial "was premised only on a summary conclusion of no causation and lacked any factual basis" ( Matter of Meyer , 90 NY2d at 147, citing Matter of Brady v City of New York , 22 NY2d 601, 605—606 [1968] ).
In the instant case, the Medical Board established that it examined Martin and that it reviewed all the records she submitted. After reviewing and reconsidering same, the Medical Board determined that Martin did not causally connect her injuries and disabilities with the accident of December 29, 2010. Based on the evidence reviewed and the process followed, the determination of the Medical Board had a sound and substantial basis on the record and was supported by credible medical evidence. Furthermore, the determination made by NYCERS to follow the recommendations of the Medical Board was neither arbitrary nor capricious.
CONCLUSION
The petition of Minisa Martin for an order vacating and reversing the decision of the N.Y.C. Employees Retirement System, New York City Department of Sanitation, and NYCERS Medical Board is denied.
The Decision of the N.Y.C. Employees Retirement System, New York City Department of Sanitation, and NYCERS Medical Board to deny Minisa Martin's application for accidental disability retirement benefits is affirmed, the petition is denied and the Article 78 proceeding is dismissed.
The foregoing constitutes the decision and order of this Court.