Ambery v. Board of Trustees of New York City Fire Department

298 A.D.2d 582, 748 N.Y.S.2d 681, 2002 N.Y. App. Div. LEXIS 10281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2002
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Fire Department Article I-B Pension Fund dated February 18, 2000, which denied the petitioner’s accident disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Dabiri, J.), dated January 25, 2001, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly found that the determination of the Board of Trustees of the New York City Fire Department Article I-B Pension Fund denying accidental disability retirement benefits to the petitioner was not arbitrary or capricious. The petitioner’s injuries resulted solely from the performance of his usual duties (see Matter of Kehoe v City of New York, 81 NY2d 815). The Supreme Court also properly declined to consider the petitioner’s other arguments, since they were not raised in the administrative hearing under review (see Matter of Collins v Amrhein, 144 AD2d 461). “It is well settled * * * that a petitioner may not raise new claims in a proceeding pursuant to CPLR article 78 that were not raised in the administrative hearing under review” (Matter of Collins v Amrhein, supra at 462-463; see Matter of Schulz v State of New York, 86 NY2d 225, 237, cert denied 516 US 944). Ritter, J.P., Altman, H. Miller and Adams, JJ., concur.