Fischer v. Levitt

Appellate Division of the Supreme Court of New York

Fischer v. Levitt

65 A.D.2d 858, 410 N.Y.S.2d 378, 1978 N.Y. App. Div. LEXIS 13760

Appellate Division of the Supreme Court of the State of New York·Decided November 16, 1978·Published·Cited by 4 cases

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller, which denied petitioner’s application for accidental disability retirement. Subdivision 1 of section 363-a of the Retirement and Social Security Law provides that "any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” The sole issue here is whether there is sufficient evidence in the record to support the Comptroller’s determination that this presumption has been rebutted. Petitioner, a fireman employed by the City of Buffalo since 1945, sustained a myocardial infarction, while at home, on the morning of March 12,1974. He was last on duty on March 8, 1974. Petitioner’s physician and the cardiologist who testified on behalf of the retirement system were both of the opinion that petitioner had an underlying atherosclerotic condition, but they disagreed as to whether petitioner’s impairment was work related. The retirement system’s expert concluded that while petitioner was disabled, there was no apparent work-related cause for petitioner’s vascular disease. There was also evidence that petitioner was diabetic and had been a heavy smoker and [859] slightly overweight. The retirement system’s expert testified that these are high risk factors in atherosclerotic disease. Accordingly, we conclude that there is competent and substantial evidence to rebut the statutory presumption (Matter of Pastor v Levitt, 58 AD2d 669, mot for lv to app den 42 NY2d 808; Matter of Behan v Levitt, 52 AD2d 963). Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.

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Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller, which denied petitioner’s application for accidental disability retirement. Subdivision 1 of section 363-a of the Retirement and Social Security Law provides that "any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” The sole issue here is whether there is sufficient evidence in the record to support the Comptroller’s determination that this presumption has been rebutted. Petitioner, a fireman employed by the City of Buffalo since 1945, sustained a myocardial infarction, while at home, on the morning of March 12,1974. He was last on duty on March 8, 1974. Petitioner’s physician and the cardiologist who testified on behalf of the retirement system were both of the opinion that petitioner had an underlying atherosclerotic condition, but they disagreed as to whether petitioner’s impairment was work related. The retirement system’s expert concluded that while petitioner was disabled, there was no apparent work-related cause for petitioner’s vascular disease. There was also evidence that petitioner was diabetic and had been a heavy smoker and [859] slightly overweight. The retirement system’s expert testified that these are high risk factors in atherosclerotic disease. Accordingly, we conclude that there is competent and substantial evidence to rebut the statutory presumption (Matter of Pastor v Levitt, 58 AD2d 669, mot for lv to app den 42 NY2d 808; Matter of Behan v Levitt, 52 AD2d 963). Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.

Fischer v. Levitt, 65 A.D.2d 858, 410 N.Y.S.2d 378, 1978 N.Y. App. Div. LEXIS 13760 (N.Y. Ct. App. 1978).

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