IN RE: William BALL (2006)

Supreme Court, Appellate Division, First Department, New York.

IN RE: William BALL, Petitioner-Appellant, v. Raymond KELLY, Police Commissioner of the City of New York, etc., et al., Respondents-Respondents.

Decided: December 19, 2006

BUCKLEY, P.J., TOM, MAZZARELLI, FRIEDMAN, McGUIRE, JJ.

Jeffrey L. Goldberg, P.C., Lake Success (Chester Lukaszewski of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered September 19, 2005, denying the petition and dismissing this article 78 proceeding, unanimously affirmed, without costs.

It cannot be determined, as matter of law, that the disability was a natural and proximate result of a service-related accident (see Matter of Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 N.Y.2d 347, 469 N.Y.S.2d 635, 457 N.E.2d 740 [1983] ). While petitioner's hearing loss did result from an acute injury, the record supports the finding that he was performing routine duties at the time of his injury (see e.g. Matter of McDonald v. Regan, 174 A.D.2d 940, 571 N.Y.S.2d 636 [1991], lv. denied 78 N.Y.2d 859, 575 N.Y.S.2d 455, 580 N.E.2d 1058 [1991] ).

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