Rosenberg v. Board of Estimate

257 A.D. 839, 12 N.Y.S.2d 215, 1939 N.Y. App. Div. LEXIS 8103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1939
• Status: Published

Opinion

In a proceeding commenced to review a determination of the Medical Board of the New York City Employees’ Retirement System denying an application for retirement for accident disability, order granting petitioner’s application to the extent of directing a trial by a court and jury of a framed issue reversed on the law, with ten dollars costs and disbursements and proceeding dismissed on the merits, without costs. Throughout the course of petitioner’s employment, from 1918 until the time of her conceded disability in March of 1938, petitioner has been suffering from different ailments which have required leaves of absence. In 1926, a fracture of her rib was discovered. Thereafter, she developed or was treated for bronchitis, bronchiectasis and diabetes. These are the chief ailments, apparently, which have resulted in her disability. She claims that they are all attributable to the fracture and the force applied to her person which, in .turn, was caused by submission, in 1924, in the course of her employment, to the ministrations of one practicing medicine without a license. We are of opinion that it was within the power of the Medical Board, upon all the circumstances shown, to determine whether or not the alleged violent treatment administered in 1924 resulted in the fracture discovered in 1926, or in other abdominal or chest disturbances which, in turn, resulted in the ailments creating disability. There was no abuse of discretionary power and, therefore, no issue to be presented to a jury with respect thereto. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [170 Misc. 800.]