Knorr v. Kelly

35 A.D.3d 326, 825 N.Y.S.2d 364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2006
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered June 7, 2005, which denied petitioner police officer’s application to annul respondents’ determination denying his application for an accident disability retirement, as a consequence of a tie vote, and dismissed the petition, unanimously affirmed, without costs.

The statutory presumption of General Municipal Law § 207-k (the Heart Bill) was overcome by credible medical evidence that petitioner’s disabling heart condition is apical hypertrophic cardiomyopathy of unknown etiology but in no event related to occupational stress (see Matter of Bagarozza v McGuire, 64 NY2d 1043 [1985]). While petitioner’s expert opines that petitioner’s coexistent hypertension and coronary artery disease were induced by stress and exacerbated the likely genetic cardiomyopathy, ample credible medical evidence shows that the hypertension is of recent origin and has not yet caused its signature disease, generalized left ventricular hypertrophy, and that the coronary artery disease is nonobstructive (see Matter of McNamara v Kelly, 32 AD3d 747 [2006]; compare Matter of Lunt v Kelly, 227 AD2d 200 [1996], lv denied 90 NY2d 803 [1997] , with Matter of Seldon v Kelly, 21 AD3d 840 [2005]). It cannot be said as a matter of law that the cause of petitioner’s disability is hypertension or coronary artery disease (see Matter of Welch v Safir, 293 AD2d 295 [2002]). Concur—Friedman, J.P., Nardelli, Gonzalez, Catterson and Kavanagh, JJ.