Scotto v. Cawley

50 A.D.2d 733, 375 N.Y.S.2d 586, 1975 N.Y. App. Div. LEXIS 11509

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1975
• Status: Published

Opinion

— Judgment, Supreme Court, New York County, entered August 23, 1974, denying the petitioner-appellant’s application and dismissing his petition to nullify the respondent board of trustees, police pension fund’s determination to retire him on ordinary disability rather than on accidental disability, unanimously reversed, on the law, without costs and without disbursements, and the proceeding remanded to the respondent board of trustees for further consideration in accordance with this memorandum. The central issue here is whether the petitioner had a history of back strain prior to a line-of-duty back strain sustained on July 13, 1959. The Special Term, in dismissing the petition, noted that the determination of the board of trustees involved consideration of evidence that there was a history of prior back strain. That conclusion was erroneous since no such evidence is revealed in the minutes of the board, nor did the respondent medical board, which reported to the board of trustees, mention any history of a prior back strain. Reconsideration by the board of trustees should encompass all medical evidence to date. Concur — Murphy, J. P., Tilzer, Lane, Nunez and Lynch, JJ.