Higgins v. Kelly

84 A.D.3d 520, 921 N.Y.S.2d 856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 4, 2009, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 seeking to, among other things, annul the determination of respondent Board of Trustees denying petitioner police officer’s application for accident disability retirement benefits, unanimously affirmed, without costs.

The determination that petitioner’s condition was not job-related had a rational basis. The statutory presumption set forth in General Municipal Law § 207-k (as amended by L 2006, ch 654, § 1) was sufficiently rebutted by competent evidence that petitioner’s condition was caused by her cardiac arrhythmia, not a stroke (see Matter of DeMonico v Kelly, 49 AD3d 265, 266 [2008]). It was the sole province of the Medical Board and the Board of Trustees to resolve the conflicts in evidence (see Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, 660 [1995]). Concur— Gonzalez, P.J., Tom, Andrias, Moskowitz and Freedman, JJ. [Prior Case History: 2009 NY Slip Op 32566(U).]