IN RE: Bryant BARNES (2006)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Trustees of the New York Fire Department, Sub-Chapter II Medical Board, dated June 4, 2003, which denied the petitioner's application for accident disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Rosenberg, J.), dated July 13, 2004, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 “Where, as here, the respondent Board of Trustees of New York City Fire Department [Sub-Chapter II Medical Board] denies an application for an accident disability pension by a tie vote, pursuant to Matter of City of New York v. Schoeck, 294 N.Y. 559 [63 N.E.2d 104], this Court may set aside that determination only if it can conclude as a matter of law that the petitioner's disability was a natural and proximate result of a service-related accident” (Matter of Farley v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 13 A.D.3d 531, 531, 787 N.Y.S.2d 76;  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, 351, 469 N.Y.S.2d 635, 457 N.E.2d 740).

 In view of the medical evidence presented, we cannot conclude, as a matter of law, that the petitioner's disability was a natural and proximate result of his service-related accident (see Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 145, 659 N.Y.S.2d 215, 681 N.E.2d 382;  Matter of Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, supra at 351, 469 N.Y.S.2d 635, 457 N.E.2d 740;  Matter of Farley v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, supra ).

There is no competent evidence in the record that the petitioner submitted the materials which his attorney claims were submitted.  “Obviously, it cannot be said that [the] respondents failed to perform a duty enjoined upon them by law or were arbitrary and capricious in not considering medical evidence which was not submitted to them ․ Whether, as an original matter, [the] respondents can or should reopen the proceedings to consider ․ additional evidence, if [the] petitioner applies to them for such relief, is not a matter for judicial determination at the present stage” (Matter of Rocco v. Board of Trustees, Police Pension Fund, Art. II, 98 A.D.2d 609, 610, 469 N.Y.S.2d 346).

The petitioner's remaining contentions are without merit.