Opinion
6560 Index 101380/14
05-15-2018
In re Jacqueline PLOSS, etc., Petitioner–Appellant, v. William J. BRATTON, etc., et al., Respondents–Respondents.
Law Office of Jeffrey L. Goldberg, Port Washington (Jeffrey L. Goldberg of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Eric Lee of counsel), for respondents.
Law Office of Jeffrey L. Goldberg, Port Washington (Jeffrey L. Goldberg of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Eric Lee of counsel), for respondents.
Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.
Order and judgment (one paper), Supreme Court, New York County (Gerald Lebovits, J.), entered July 7, 2016, denying the petition to annul respondents' determination, dated August 13, 2014, which denid petitioner's application for accidental death retirement benefits pursuant to General Municipal Law § 207–k (Heart Bill), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The statutory presumption in petitioner's favor that her husband's heart condition and resulting death were service-related was rebutted by affirmative credible evidence (see e.g. Matter of Titza v. Kelly, 138 A.D.3d 498, 28 N.Y.S.3d 303 [1st Dept. 2016] ). The record supports respondents' finding that Officer Ploss's death was attributable to ventricular arrhythmia that he was predisposed to as a result of his severely reduced left ventricular function, and that he did not suffer from coronary artery disease or hypertension (see e.g. Matter of Modlin v. Kelly, 121 A.D.3d 464, 994 N.Y.S.2d 577 [1st Dept. 2014], lv denied 25 N.Y.3d 907, 2015 WL 2237379 [2015] Matter of McNamara v. Kelly, 32 A.D.3d 747, 820 N.Y.S.2d 797 [1st Dept. 2006], lv denied 8 N.Y.3d 810, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007] ). Such evidence was sufficient to rule out occupational stress as the cause of his poor cardiovascular health.
Following this Court's remand on petitioner's prior article 78 proceeding, respondents have done more than "point[ ] to gaps in petitioner's evidence" ( 113 A.D.3d 531, 531, 978 N.Y.S.2d 847 [1st Dept. 2014] ). The assertion of Officer Ploss's cardiologist that Ploss's ventricular rate was very difficult to control, and this was possibly secondary to increased catecholamines resulting from job-related stress, was properly discredited. Respondents addressed this Court's prior concerns, explaining what catecholamines are and why they could not have been responsible for Officer Ploss's death.