IN RE: Frederick KOPETZ (1998)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, which (1) found the petitioner to be incapable of full duty, (2) denied his application for an accident disability retirement, and (3) retired him on ordinary disability, the petitioner appeals from a judgment of the Supreme Court, Kings County (Vaughan, J.), dated December 4, 1997, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 Where, as here, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund (hereinafter the Fund) was unable to resolve the issue of causation, resulting in a tie vote, ordinary disability retirement is mandated (see, Matter of Meyer v. Board of Trustees of N.Y. City Fire Dept. Art. 1-B Pension Fund, 90 N.Y.2d 139, 144-145, 659 N.Y.S.2d 215, 681 N.E.2d 382;  Matter of Wolyniec v. Board of Trustees, 232 A.D.2d 495, 648 N.Y.S.2d 338;  Matter of City of New York v. Schoeck, 294 N.Y. 559, 63 N.E.2d 104).   The determination of the Fund's Medical Board that the petitioner had not established that he was permanently disabled under the Cancer Bill (General Municipal Law § 207-kk) was based on “some credible evidence” (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).   Although the petitioner was diagnosed in 1982 with renal cancer and subsequently underwent a nephrectomy, medical reports and examinations indicated that he became and remained cancer-free.   Further, the petitioner was able to resume full duty and it was not until January of 1994, after he suffered a stroke, that the petitioner was recommended for “light duty”.

 Further, the issue of whether the petitioner was disabled under the Heart Bill (General Municipal Law § 207-k) is not properly before this court (see, Matter of Roggemann v. Bane, 223 A.D.2d 854, 636 N.Y.S.2d 199;  Matter of Clowry v. Town of Pawling, 202 A.D.2d 663, 609 N.Y.S.2d 299).   In any event, the petitioner has failed to provide any evidence of an underlying heart disease (see, Matter of Schwarzrock v. Board of Trustees of N.Y. City Fire Dept. Art. 1-B Pension Fund, 238 A.D.2d 596, 597, 656 N.Y.S.2d 386;  Appleby v. Herkommer, 165 A.D.2d 727, 729, 563 N.Y.S.2d 786;  Matter of Kreie v. Board of Trustees of N.Y. City Fire Dept. Art. 1-B Pension Fund, 143 A.D.2d 350, 532 N.Y.S.2d 310).

The petitioner's remaining contentions are without merit.

MEMORANDUM BY THE COURT.