IN RE: Cyress SMITH (2022)

Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about April 19, 2021, denying the petition to annul respondents’ determination, dated November 13, 2019, which denied petitioner's application for accidental disability retirement benefits pursuant to the World Trade Center (WTC) Disability Law, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondent Medical Board's determination that petitioner was not permanently disabled from the performance of his duties as an NYPD officer as a result of his obstructive sleep apnea was not arbitrary and capricious.  The Medical Board properly based its conclusion on its examination of petitioner and his medical records, which provided some credible evidence in support of its findings (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]), as well as the fact that petitioner had not undergone available treatment options to alleviate his symptoms (see Matter of Mondello v. Beekman, 78 A.D.2d 824, 824, 433 N.Y.S.2d 439 [1st Dept. 1980], affd 56 N.Y.2d 513, 449 N.Y.S.2d 963, 434 N.E.2d 1341 [1982]).

Contrary to petitioner's contention, the Medical Board was not required to utilize any particular written medical standards or guidelines in determining whether petitioner was disabled.  The Medical Board was entitled to rely on its own expertise (see Matter of Drew v. O'Neill, 187 A.D.3d 404, 405, 129 N.Y.S.3d 756 [1st Dept. 2020]).  Similarly, the NYPD Medical Division's finding that petitioner's obstructive sleep apnea affected the performance of his duties was not binding on the Medical Board (see Matter of Ortiz v. Kelly, 94 A.D.3d 430, 431, 941 N.Y.S.2d 148 [1st Dept. 2012];  Matter of Nemecek v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 99 A.D.2d 954, 955, 472 N.Y.S.2d 863 [1st Dept. 1984]).

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