Barnes v. Board of Trustees of New York Fire Department

Appellate Division of the Supreme Court of New York

Barnes v. Board of Trustees of New York Fire Department

28 A.D.3d 655, 813 N.Y.S.2d 523

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 2006

StatusPublished

This text of 28 A.D.3d 655 (Barnes v. Board of Trustees of New York Fire Department) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barnes v. Board of Trustees of New York Fire Department, 28 A.D.3d 655, 813 N.Y.S.2d 523 (N.Y. Ct. App. 2006).

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Opinion

In a proceeding pursuant to CFLR article 78 to review a determination of the respondent Board of Trustees of the New York Fire Department, Sub-Chapter II Medical Board, dated June 4, 2003, which denied the petitioner’s application for accident disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Rosenberg, J.), dated July 13, 2004, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

“Where, as here, the respondent Board of Trustees of New York City Fire Department [Sub-Chapter II Medical Board] denies an application for an accident disability pension by a tie vote, pursuant to Matter of City of New York v Schoeck (294 NY 559 [1945]), this Court may set aside that determination only if it can conclude as a matter of law that the petitioner’s disability was a natural and proximate result of a service-related accident” (Matter of Farley v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 13 AD3d 531, 531 [2004]; see Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 60 NY2d 347, 351 [1983]).

In view of the medical evidence presented, we cannot conclude, as a matter of law, that the petitioner’s disability was a natural and proximate result of his service-related accident (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145 [1997]; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, supra at 351; Matter of Farley v Board of Trustees of NY. City Fire Dept., Art. 1-B Pension Fund, supra).

There is no competent evidence in the record that the petitioner submitted the materials which his attorney claims [656]*656were submitted. “Obviously, it cannot be said that [the] respondents failed to perform a duty enjoined upon them by law or were arbitrary and capricious in not considering medical evidence which was not submitted to them . . . Whether, as an original matter, [the] respondents can or should reopen the proceedings to consider . . . additional evidence, if [the] petitioner applies to them for such relief, is not a matter for judicial determination at the present stage” (Matter of Rocco v Board of Trustees, Police Pension Fund, Art. II, 98 AD2d 609, 610 [1983]).

The petitioner’s remaining contentions are without merit. Florio, J.P., Santucci, Goldstein and Skelos, JJ., concur.

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In a proceeding pursuant to CFLR article 78 to review a determination of the respondent Board of Trustees of the New York Fire Department, Sub-Chapter II Medical Board, dated June 4, 2003, which denied the petitioner’s application for accident disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Rosenberg, J.), dated July 13, 2004, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

“Where, as here, the respondent Board of Trustees of New York City Fire Department [Sub-Chapter II Medical Board] denies an application for an accident disability pension by a tie vote, pursuant to Matter of City of New York v Schoeck (294 NY 559 [1945]), this Court may set aside that determination only if it can conclude as a matter of law that the petitioner’s disability was a natural and proximate result of a service-related accident” (Matter of Farley v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 13 AD3d 531, 531 [2004]; see Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 60 NY2d 347, 351 [1983]).

In view of the medical evidence presented, we cannot conclude, as a matter of law, that the petitioner’s disability was a natural and proximate result of his service-related accident (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145 [1997]; Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, supra at 351; Matter of Farley v Board of Trustees of NY. City Fire Dept., Art. 1-B Pension Fund, supra).

There is no competent evidence in the record that the petitioner submitted the materials which his attorney claims [656]*656were submitted. “Obviously, it cannot be said that [the] respondents failed to perform a duty enjoined upon them by law or were arbitrary and capricious in not considering medical evidence which was not submitted to them . . . Whether, as an original matter, [the] respondents can or should reopen the proceedings to consider . . . additional evidence, if [the] petitioner applies to them for such relief, is not a matter for judicial determination at the present stage” (Matter of Rocco v Board of Trustees, Police Pension Fund, Art. II, 98 AD2d 609, 610 [1983]).

The petitioner’s remaining contentions are without merit. Florio, J.P., Santucci, Goldstein and Skelos, JJ., concur.

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28 A.D.3d 655, 813 N.Y.S.2d 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-board-of-trustees-of-new-york-fire-department-nyappdiv-2006.

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