Seldon v. Kelly

21 A.D.3d 840, 801 N.Y.S.2d 306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2005
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Paviola A. Soto, J.), entered November 18, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to annul the determination of respondent Board of Trustees, dated August 21, 2002, denying petitioner’s application for accident disability retirement benefits, unanimously affirmed, without costs.

In view of the objective medical evidence demonstrating that petitioner’s dilated cardiomyopathy was not accompanied by underlying stress-related coronary artery disease or hypertension, and the conclusions of various medical experts that petitioner’s disabling condition was of unknown origin or might possibly have been caused by a viral illness, the statutory presumption set forth in General Municipal Law § 207-k was adequately rebutted. In this posture, the determination of respondent Board of Trustees that the condition was not job-related is not arbitrary and capricious (see Matter of Vallas v Saftr, 304 AD2d 353 [2003]; Tardibuono v Board of Trustees of N.Y. City Police Dept., Art. II Pension Fund, 240 AD2d 327 [1997]). Concur—Marlow, J.P., Ellerin, Nardelli, Williams and Sweeny, JJ.