Lloyd v. Kelly

73 A.D.3d 490, 899 N.Y.S.2d 835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (James A. Yates, J.), entered February 4, 2009, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 seeking, inter alia, to annul respondents’ determination denying accident disability retirement benefits (ADR), unanimously affirmed, without costs.

The denial of the application for ADR was neither arbitrary and capricious nor an abuse of discretion. The Medical Board’s finding that the alleged manipulation of petitioner by a chiropractor during a medical fraud investigation was not the proximate cause of his back injuries, was supported by credible evidence (see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760-761 [1996]), including petitioner’s own medical records, which showed that he had degenerative disc conditions in his back that dated prior to the chiropractic incident at issue. Furthermore, the argument that the incident with the chiropractor aggravated the preexisting condition was not supported by the evidence; petitioner’s records demonstrated that he neither sought leave nor treatment until approximately three months after the incident (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139 [1997]). Concur—Saxe, J.P., Friedman, Nardelli, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op 30233(U).]