Barry v. Board of Trustees of the Police Pension Fund of the Police Department

94 A.D.2d 609, 462 N.Y.S.2d 6, 1983 N.Y. App. Div. LEXIS 18021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1983
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Price, J.), entered May 7, 1982, annulling a determination of the board of trustees and directing that petitioner Barry be given an accidental disability pension, reversed, on the law, petition dismissed, and administrative determination, retiring the petitioner on ordinary disability, reinstated, without costs. Petitioner Barry, a police officer, injured his back while alighting from his patrol car in the course of issuing a summons. The board of trustees found that the incident leading to Barry’s disability did not constitute an “accident” within the meaning of section B18-43.0 of the Administrative Code of the City of New York. Therefore, in a tie vote, the board retired Barry on an ordinary disability pension. Upon the strength of the then-existing authority (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept, of City of N. Y., Art. II, 85 AD2d 931), Special Term reversed and directed that Barry be given an accidental disability pension. Subsequently, the Appellate Division order in Lichtenstein was reversed by the Court of Appeals (57 NY2d 1010). In Lichtenstein, the police officer had strained his back while placing a summons upon a car. The Court of Appeals found that this was not an accidental injury under section B18-43.0. The facts in the present proceeding are almost identical to those in Lichtenstein. Consequently, Special Term’s order must be reversed and the administrative determination must be reinstated. Concur — Murphy, P. J., Ross, Carro, Fein and Alexander, JJ.