Opinion
16637 Index No. 156853/19 Case No. 2021–04193
11-15-2022
In the Matter of Jose RAMOS, Petitioner–Appellant, v. James O'NEILL etc., et al., Respondents–Respondents.
Goldberg & McEnaney, LLC, Port Washington (Timothy McEnaney of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Goldberg & McEnaney, LLC, Port Washington (Timothy McEnaney of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.
Gische, J.P., Kapnick, Kern, Gesmer, Higgitt, JJ.
Judgment (denominated an order), Supreme Court, New York County (Carol R. Edmead, J.), entered May 13, 2021, denying the petition to annul a determination of respondent Board of Trustees of the New York City Police Pension Fund, Article II, dated March 13, 2019, which denied petitioner's application for accidental disability retirement benefits, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination of the Board of Trustees that there was no causal connection between petitioner's 2012 line-of-duty injury and his disability was supported by credible evidence (see Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 N.Y.2d 756, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ; Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 145, 659 N.Y.S.2d 215, 681 N.E.2d 382 [1997] ). Five of six physicians who examined petitioner concluded that petitioner suffered from degenerative disc disease, and petitioner was able to return to full duty for more than two years following the line-of-duty injury. While petitioner's treating surgeon concluded that petitioner's spinal condition was causally related to the line-of-duty injury, resolution of this conflict in evidence fell within the sole province of the NYCERS Medical Board and the Board of Trustees (see Matter of Russell v. New York City Fire Pension Fund, 192 A.D.3d 442, 442, 139 N.Y.S.3d 805 [1st Dept. 2021] ; Matter of Higgins v. Kelly, 84 A.D.3d 520, 520–521, 921 N.Y.S.2d 856 [1st Dept. 2011], lv denied 18 N.Y.3d 806, 2012 WL 444070 [2012] ). Further, the Board of Trustees properly relied upon the NYCERS Medical Board's finding of lack of causation (see Matter of Guzman v. Safir, 293 A.D.2d 281, 281, 739 N.Y.S.2d 707 [2002], lv denied 98 N.Y.2d 614, 751 N.Y.S.2d 169, 780 N.E.2d 980 [2002] ).
Petitioner's contention that the NYCERS Medical Board mistakenly based its findings on a diagnosis of only spondylolysis, where he also suffered from spondylolisthesis, which he claims is acute in nature, is unavailing, as the NYCERS Medical Board independently reviewed petitioner's 2012 MRI film in reaching its conclusions. Furthermore, the NYPD Medical Board's finding that petitioner's disability was causally connected to the line-of-duty injury is not binding on the NYCERS Medical Board and Board of Trustees (see Matter of Ortiz v. Kelly, 94 A.D.3d 430, 941 N.Y.S.2d 148 [1st Dept. 2012] ; Matter of Nemecek v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 99 A.D.2d 954, 955, 472 N.Y.S.2d 863 [1984] ).
We have considered petitioner's remaining arguments and find them unavailing.