Schussler v. Codd

Appellate Division of the Supreme Court of New York

Schussler v. Codd

91 A.D.2d 890, 457 N.Y.S.2d 506, 1983 N.Y. App. Div. LEXIS 16168

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

DecidedJanuary 6, 1983

StatusPublished

Cited by6 cases

This text of 91 A.D.2d 890 (Schussler v. Codd) 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.

Bluebook

Schussler v. Codd, 91 A.D.2d 890, 457 N.Y.S.2d 506, 1983 N.Y. App. Div. LEXIS 16168 (N.Y. Ct. App. 1983).

Pincite

Opinions

— Judgment, Supreme Court, New York County (Okin, J.), dated September 17, 1981 vacating respondents’ (essentially the New York City Police Pension Fund, Article II) determination denying petitioner service-connected accident disability retirement and directing that petitioner be granted such service-connected accident disability retirement, is unanimously reversed, without costs, on the law, and the petition is dismissed. The petitioner had the burden of proving that his loss of hearing was caused by a line-of-duty “accident”. (Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., Art. 2, 37 AD2d 378, 380, affd 32 NY2d 852.) The evidence adduced before the medical board and the board of trustees indicated that the petitioner had never complained of a hearing loss prior to the submission of his application for accidental disability retirement. The proof also showed that he might have sustained his hearing loss while exposed to combat during World War II. Moreover, it was possible to conclude from the evidence that petitioner did not sustain a loss of hearing during mandatory practice sessions on the pistol range. For 10 years he had voluntarily participated as a member of the police department’s fifth division pistol team. Upon [891]*891this state of the evidence, the petitioner did not carry his burden of proof to establish causation. Hence, the board of trustees did not act arbitrarily or capriciously in rejecting his application for accidental disability retirement. For this limited reason, we would reverse and dismiss the petition. We find it unnecessary to reach the additional question as to whether Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II (57 NY2d 1010) is controlling upon the facts in this case. Concur — Murphy, P. J., Fein and Kassal, JJ. Ross and Silverman, JJ., concur in separate memoranda as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

— Judgment, Supreme Court, New York County (Okin, J.), dated September 17, 1981 vacating respondents’ (essentially the New York City Police Pension Fund, Article II) determination denying petitioner service-connected accident disability retirement and directing that petitioner be granted such service-connected accident disability retirement, is unanimously reversed, without costs, on the law, and the petition is dismissed. The petitioner had the burden of proving that his loss of hearing was caused by a line-of-duty “accident”. (Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., Art. 2, 37 AD2d 378, 380, affd 32 NY2d 852.) The evidence adduced before the medical board and the board of trustees indicated that the petitioner had never complained of a hearing loss prior to the submission of his application for accidental disability retirement. The proof also showed that he might have sustained his hearing loss while exposed to combat during World War II. Moreover, it was possible to conclude from the evidence that petitioner did not sustain a loss of hearing during mandatory practice sessions on the pistol range. For 10 years he had voluntarily participated as a member of the police department’s fifth division pistol team. Upon [891]*891this state of the evidence, the petitioner did not carry his burden of proof to establish causation. Hence, the board of trustees did not act arbitrarily or capriciously in rejecting his application for accidental disability retirement. For this limited reason, we would reverse and dismiss the petition. We find it unnecessary to reach the additional question as to whether Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II (57 NY2d 1010) is controlling upon the facts in this case. Concur — Murphy, P. J., Fein and Kassal, JJ. Ross and Silverman, JJ., concur in separate memoranda as follows:

Cite This Page — Counsel Stack

Bluebook (online)

91 A.D.2d 890, 457 N.Y.S.2d 506, 1983 N.Y. App. Div. LEXIS 16168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schussler-v-codd-nyappdiv-1983.

Opinions

Related

Cite This Page — Counsel Stack