IN RE: Nicholas VISCONTI (2008)

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 15, 2006, dismissing this proceeding to annul respondents' denial of accident disability retirement, unanimously affirmed, without costs.

Petitioner sustained back injuries in a 1994 line-of-duty accident and a 1999 line-of-duty incident while removing a spare tire from a police vehicle, the latter of which was not an “accident” for pension purposes (see Matter of Menna v. New York City Employees' Retirement Sys., 59 N.Y.2d 696, 463 N.Y.S.2d 438, 450 N.E.2d 244 [1983] ).

The Board of Trustees' determination in 2004 that the 1999 injury was the competent causal factor of petitioner's disability was supported by some credible evidence, and its ruling was neither arbitrary nor capricious (see Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760-761, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ).

After reevaluating its position as to the cause of petitioner's disability, in light of the gap in treatment between the two injuries, the Medical Board concluded that the 1999 injury was the competent causal factor.   This finding is supported by petitioner's conservative treatment for the 1994 injury, the subsequent gap in treatment, and his return to full duty (see Matter of Doyle v. Kelly, 8 A.D.3d 125, 126, 779 N.Y.S.2d 32 [2004];  Matter of Calzerano v. Board of Trustees of N.Y. City Police Pension Fund, Art. II, 245 A.D.2d 84, 664 N.Y.S.2d 451 [1997] ).

We have considered petitioner's remaining arguments and find them unavailing.