Tropea v. New York City Employees Retirement System

49 A.D.2d 819, 372 N.Y.S.2d 685, 1975 N.Y. App. Div. LEXIS 10935

Opinion

Judgment, Supreme Court, New York County, entered September 6, 1974, dismissing the petition, unanimously affirmed, without costs or disbursements. Petitioner was employed by the Department of Sanitation in 1968 and, on April 29, 1969, while on duty, allegedly slipped on debris, fell against a spike fence and sustained injuries. Petitioner was on medical leave for almost the entire four-year period from the date of the incident until his retirement. In January, 1971 he applied for accident disability retirement which was denied. He was notified of his right to a review by a special medical committee, which review, however, was conditioned upon petitioner’s signing a waiver of any rights to seek further administrative relief or judicial review. The review resulted in denial of disability retirement. Petitioner remained on sick call. The sanitation department applied in January, 1974 to retire petitioner for ordinary disability, which application was granted. Petitioner then instituted this article 78 proceeding to review the granting of ordinary disability retirement and, by indirection, sought review of the 1971 denial of accident disability retirement. This the petitioner may not do. The initial signing of the waiver bars any further review of that 1971 determination which review, even absent a waiver, would be barred by the Statute of Limitations (CPLR 217). Concur—Markewich, J. P., Lupiano, Tilzer, Capozzoli and Lane, JJ.