Duester v. McGuire

81 A.D.2d 553, 438 N.Y.S.2d 325, 1981 N.Y. App. Div. LEXIS 11022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1981
• Status: Published

Opinion

— Order and judgment, Supreme Court, New York County, entered January 7, 1980, directing that an accident disability retirement pension be granted to petitioner-respondent, unanimously reversed, on the law, without costs or disbursements, and the matter remanded to the Medical Board of the Police Pension Fund. (See Matter of De Milia v McGuire, 76 AD2d 1039, affd 52 NY2d 463; Uniformed Firefighters Assn. Local 94, IAFF, AFL-CIO v Beck-man, 76 AD2d 1043, affd 52 NY2d 463.) Special Term erred when it granted the pension. This power resides in the board of trustees (Administrative Code of the City of New York, § B18-43.0). It may not be assumed by the court (Matter of Meschino v Lowery, 34 AD2d 255, 259) which must remand when there has been an arbitrary or capricious determination. Reconsideration by the medical board is necessary. It made no findings concerning the heart condition, prolapse of the mitral valve, for which the petitioner-respondent was being treated by his personal physician and which triggered the application for accident disability pension. Concur — Murphy, P.J., Kupferman, Sullivan, Markewich and Lynch, JJ.