Opinion
December 15, 1983
Judgment, Supreme Court, New York County (B. Nadel, J.), entered September 8, 1982 vacating determination of respondent New York City Employees' Retirement System denying petitioner accident disability retirement, and directing said respondent to grant petitioner accident disability retirement pursuant to section 207-k Gen. Mun. of the General Municipal Law is reversed, on the law, and the petition is dismissed, without costs. The expert opinion of the medical board was that the type of heart disease from which petitioner suffered — valvular heart disease with aortic insufficiency — was of a kind that is not related to the stresses of occupational activities or the performance and discharge of police duties, but rather to childhood diseases. In our view this expert medical opinion constituted "competent evidence" sufficient to justify the medical board in finding that the case fell within the "unless" clause of subdivision a of section 207-k Gen. Mun. of the General Municipal Law (the heart bill), which provides a presumption that heart disease was incurred in the performance and discharge of duty, "unless the contrary be proved by competent evidence." (Accord Matter of Vecchiarello v Board of Trustees, 115 Misc.2d 241, affd 96 A.D.2d 1153.)
Concur — Sullivan, Asch, Silverman and Milonas, JJ.
I would modify to remand to the New York City Employees' Retirement System for further consideration in accordance with the directive at Special Term. (See Matter of O'Hagan v. Board of Trustees, 81 A.D.2d 818, affd 55 N.Y.2d 784.) In view of the determination in Uniformed Firefighters Assn. v. Beekman ( 52 N.Y.2d 463), it is now clear that section 207-k Gen. Mun. of the General Municipal Law creates a presumption that the disabling heart condition was accidentally sustained as a result of the employment of this housing authority police officer if not rebutted. It is obvious that the medical board sought to find a medical history which would sustain the denial of accident disability retirement, conjuring up afflictions for which there was no basis. Accordingly, the determination of Special Term in remanding the matter to the Retirement System to vacate their determination was sound. However, in view of the O'Hagan case ( supra), they are not to be directed to grant the disability pension, but merely directed to do their duty properly.