Pellicane v. Kelly

106 A.D.3d 558, 965 N.Y.S.2d 803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2013
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 20, 2012, denying the petition to annul respondents’ determination, which denied petitioner’s application for accident disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The statutory presumption of General Municipal Law § 207-k (Heart Bill) was overcome by credible medical evidence that petitioner’s disabling heart condition is congenital and not related to occupational stress (see Matter of Goodacre v Kelly, 96 AD3d 625 [1st Dept 2012], lv denied 20 NY3d 860 [2013]). Although petitioner’s physician opined that petitioner’s hypertension and asymmetric left ventricular hypertrophy were induced by stress and exacerbated by the duties of petitioner’s job, credible medical evidence supports the finding that the hypertension presented as relatively mild, and had not “caused its signature disease, generalized left ventricular hypertrophy” (Matter of Knorr v Kelly, 35 AD3d 326, 327 [1st Dept 2006]; compare Matter of Lunt v Kelly, 227 AD2d 200 [1st Dept 1996], lv denied 90 NY2d 803 [1997]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Mazzarelli, J.E, Sweeny, Freedman and Gische, JJ. [Prior Case History: 2012 NY Slip Op 30649(U).]