Ball v. Kelly

35 A.D.3d 267, 826 N.Y.S.2d 66

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2006
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered September 19, 2005, denying the petition and dismissing this CPLR article 78 proceeding, unanimously affirmed, without costs.

It cannot be determined, as matter of law, that the disability was a natural and proximate result of a service-related accident (see Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347 [1983]). While petitioner’s hearing loss did result from an acute injury, the record supports the finding that he was performing routine duties at the time of his injury (see e.g. Matter of McDonald v Regan, 174 AD2d 940 [1991], lv denied 78 NY2d 859 [1991]). Concur—Buckley, P.J., Tom, Mazzarelli, Friedman and McGuire, JJ.