Josey v. New York City Police Department

Appellate Division of the Supreme Court of New York

Josey v. New York City Police Department

50 A.D.3d 393, 854 N.Y.S.2d 311

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

DecidedApril 10, 2008

StatusPublished

This text of 50 A.D.3d 393 (Josey v. New York City Police 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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Josey v. New York City Police Department, 50 A.D.3d 393, 854 N.Y.S.2d 311 (N.Y. Ct. App. 2008).

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Opinion

Judgment, Supreme Court, New York County (Robert D. Lippmann, J.), entered December 4, 2006, which annulled the determination of respondent Police Pension Fund Board of Trustees denying petitioner’s application for accidental disability retirement (ADR) benefits, and directed respondent to grant petitioner ADR benefits, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed.

Respondent’s determination was based on “some credible evidence” and was not arbitrary or capricious (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760-761 [1996]). There is no evidence in the record that supports petitioner’s belated claim that his injury occurred in the line of duty.

We note that, upon finding that there was no credible evidence to support respondent’s determination, the court should have remanded the proceeding for further consideration (Matter of Perkins v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 86 AD2d 808 [1982]). Concur—Gonzalez, J.P., Nardelli, Buckley and Catterson, JJ.

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Judgment, Supreme Court, New York County (Robert D. Lippmann, J.), entered December 4, 2006, which annulled the determination of respondent Police Pension Fund Board of Trustees denying petitioner’s application for accidental disability retirement (ADR) benefits, and directed respondent to grant petitioner ADR benefits, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed.

Respondent’s determination was based on “some credible evidence” and was not arbitrary or capricious (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760-761 [1996]). There is no evidence in the record that supports petitioner’s belated claim that his injury occurred in the line of duty.

We note that, upon finding that there was no credible evidence to support respondent’s determination, the court should have remanded the proceeding for further consideration (Matter of Perkins v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 86 AD2d 808 [1982]). Concur—Gonzalez, J.P., Nardelli, Buckley and Catterson, JJ.

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50 A.D.3d 393, 854 N.Y.S.2d 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/josey-v-new-york-city-police-department-nyappdiv-2008.

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