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IN RE: the Application of Nicholas L. D'ALESSANDRO, Petitioner v. Daniel A. NIGRO, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article I–B Pension Fund and The Board of Trustees of the New York City Fire Department, Article I–B Pension Fund, Respondents.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and petition of Nicholas L. D'Alessandro (hereinafter D'Alessandro or petitioner), filed on May 11, 2017, under motion sequence number one, for an order pursuant to CPLR Article 78: (a) annulling the action of Daniel A. Nigro, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article I–B Pension Fund and the Board of Trustees of the New York City Fire Department, Article I–B Pension Fund (hereinafter the City Respondents) denying petitioner a line of duty accident disability retirement (hereinafter ADR); (b) directing the City Respondents to grant petitioner's application for ADR pursuant to the City of New York Administrative Code § 13–353, or, in the alternative; (c) directing the City Respondents by way of remand to review his case based on the law and facts set forth in the verified petition; (d) directing the City Respondents herein to serve and file certain documents pursuant to CPLR 2307.
On May 11, 2017, D'Alessandro commenced this Article 78 proceeding by filing a notice of petition and verified petition (hereinafter the commencement papers) with the Kings County Clerk's office. The verified petition contains twenty eight allegations of fact and nineteen annexed exhibits labeled A through S. By verified answer dated October 5, 2017, the City Respondent's joined issue. The City Respondent's verified answer contains ninety allegations of fact, two affirmative defenses and twenty six annexed exhibits labeled 1 through 26.
The verified petition seeks, among other things, to vacate and reverse a decision by the City Respondents to deny petitioner's application for ADR benefits. The following allegation s of fact are alleged in the verified petition. The respondent Daniel A. Nigro is at all times the Fire Commissioner of the New York City Fire Department and the Chairman of the Board of Trustees of its Article I–B Pension Fund (hereinafter the Pension Fund). The petitioner was at all material times a member of the Pension Fund.
On January 13, 2016, while working full duty, the petitioner sustained an injury to his left shoulder and right knee at a fire at Box No. 7305 in Queens, New York. On the same date, he was treated and released at Elmhurst Medical Emergency Service. At the time of the injury the petitioner was 61 years old and had 37 years of service.
During the months of February through April of 2016, D'Alessandro sought and obtained treatment for the injury to his left shoulder and right knee from two orthopedic surgeons, Drs. Ann M. Kelly and Alpesh Shah. On May 3, 2016, he filed an application for ADR pursuant to Code § 13–353, based on the injury. On January 14, 2016, the FDNY Bureau of Health Services (hereinafter BHS) placed him on service connected medical leave based on the injury. D'Alesandro never returned to duty in in any capacity thereafter.
On June 3, 2016, D'Alessandro was examined by the BHS Three–Physician Board for a duty determination. They found him unfit for full firefighting duties. They also found, among other things, that he had instability and osteoarthritis in the right knee and glenohumeral arthritis and weakness in the left shoulder. The BHS Three–Physician Board found that D'Alessandro's was disabled due to a degenerative arthritic condition and not due to the injury sustained on January 13, 2016. On June 14, 2016, the Fire Commissioner filed an ordinary disability retirement application on D'Alessandro's behalf.
On September 14, 2016, the Pension Fund Medical Board reviewed the disability applications, reviewed the medical documentation, and conducted an interview and examination of D'Alessandro. The Pension Fund Medical Board recommended to the Board of Trustee that D'Alessandro's application for ADR be denied and that the Fire Commissioner approve the application for ordinary disability retirement benefits.
On October 16, 2016, Dr. Kelly examined D'Alessandro and prepared a report in which she opined that his right knee injury and disability was directly caused by the ceiling collapsing on him on January 13, 2016. On October 19, 2016, D'Alesandro's attorney requested that the Board of Trustees of the Pension Fund remand D'Alessandro's case to the Medical Board based on new medical evidence, namely, Dr. Kelly's report.
On November 30, 2016, the Medical Board reviewed D'Alessandro's case pursuant to the Board of Trustees' remand. The Medical Board reaffirmed the denial of D'Alessandro's application for ADR and the recommendation that the Fire Commissioner approve the application for ordinary disability retirement benefits. On January 6, 2017, D'Alessandro submitted a request for retirement under service benefit in lieu of ordinary benefit to the Board of Trustees. On January 25, 2017, the Board of Trustees noted the Medical Boards denial of D'Alessandro's ADR application with a tie 6/6 vote pursuant to Matter of City of New York v. Schoeck, 294 N.Y. 559, 63 N.E.2d 104 .
The City Respondents verified answer denies nearly all the allegations of facts in the verified petition.
LAW AND APPLICATION
Petitioner seeks judicial review of the denial of his application for ADR, alleging that he is permanently disabled on account of his right knee and left shoulder, as a proximate result of a line of duty injury (hereinafter the injury) that he sustained on January 13, 2016.
Petitioner has also moved for an order pursuant to CPLR 2307 directing the City respondents to serve and file: (1) all reports, recommendations, certificates and all other documents submitted to the Board of Trustees, in connection with his ADR application; (2) copies of the minutes of the October 26, 2016 and January 25, 2017 meetings of said Board of Trustees considered, discussed, or acted upon his retirement applications and; and (3) copies of any and all records, reports or notes relating to same which are on file with the Pension Fund and the BHS.
Under CPLR Article 78, a petitioner is not entitled to discovery as of right, but must seek leave of court pursuant to CPLR 408. Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief (Plaza Operating Partners Ltd. v. IRM [U.S.A.], 143 Misc.2d 22, 24, 539 N.Y.S.2d 671 [Civil Court of the City of New York 1989] ). In a summary proceeding in which a petitioner moves for disclosure under CPLR 408, the pertinent criteria for consideration include, inter alia: (1) whether the petitioner has asserted facts to establish a cause of action; (2) whether a need to determine information directly related to the cause of action has been demonstrated; (3) whether the requested disclosure is carefully tailored so as to clarify the disputed facts; (4) whether any prejudice will result; and (5) whether the court can fashion or condition its order to diminish or alleviate any resulting prejudice (Lonray, Inc. v. Newhouse, 229 A.D.2d 440, 644 N.Y.S.2d 900 [2nd Dept. 1996] citing, New York Univ. v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808 [Civil Court of the City of New York 1983] ).
The City Respondents contend that this branch of the petition should be denied or deemed complied with because they have annexed to their verified answer the administrative record pursuant to CPLR 7804 (e). The City Respondents do not explain what they mean by the phrase the “administrative record.”
CPLR 7804 (e) pertains to answering affidavits; record to be filed; and default and provides as follows:
The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. The respondent shall also serve and submit with the answer affidavits or other written proof showing such evidentiary facts as shall entitle him to a trial of any issue of fact. The court may order the body or officer to supply any defect or omission in the answer, transcript or an answering affidavit. Statements made in the answer, transcript or an answering affidavit are not conclusive upon the petitioner. Should the body or officer fail either to file and serve an answer or to move to dismiss, the court may either issue a judgment in favor of the petitioner or order that an answer be submitted.
CPLR 7804 (e) requires that they, as the body under review, file with their answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. Of the 26 exhibits annexed to the City Respondents answer not one contains a certification. Nor have the City Respondents claimed that they filed a certified transcript of the record of the proceedings under consideration with the clerk of the court. Contained within the 26 uncertified exhibits are what are purported to be the minutes of the October 26, 2016 and January 25, 2017 meetings of the Board of Trustees. It is apparent from a review of the numbering on the pages of the annexed minutes that the minutes of each meeting actually exceeded over one hundred pages. Furthermore, of the few pages of text that were provided it is clear from the large blank spaces contained on many of the pages that much of the text has been redacted. It is therefore abundantly clear that the City Respondents have not provide a certified transcript of the record of the proceedings under consideration in accordance with CPLR 7804 (e).
When leave of court is given, discovery takes place pursuant to CPLR 3101, which provides generally that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action (Town of Pleasant Valley v. New York State Bd. of Real Property Services, 253 A.D.2d 8, 15, 685 N.Y.S.2d 74 [2nd Dept. 1999] citing, Allen v. Crowell–Collier Publishing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430  ). The Court of Appeals has ruled that “material and necessary” should be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity (Id.).
The petitioner has asserted facts to establish its cause of action and has demonstrated a need for discovery. The City Respondents have not claimed, much less demonstrated, that providing the requested discovery would be prejudicial or unduly burdensome, would violate confidentiality, or would unduly delay the case. In the absence of such contravening interests, any discovery that is relevant to the controversy at issue qualifies as material and necessary and should be allowed (Town of Pleasant Valley v. New York State Bd. of Real Property Services, 253 A.D.2d 8, 15, 685 N.Y.S.2d 74 [2nd Dept. 1999] citing, 860 Executive Towers v. Board of Assessors of County of Nassau, 53 A.D.2d 463, 474, 385 N.Y.S.2d 604 [2nd Dept. 1976] ). Accordingly, since no prejudice is likely to result to the City Respondents and the discovery is carefully tailored to obtain information necessary to establish the petitioner's cause of action, the petitioner' motion should be granted (Lonray, Inc. v. Newhouse, 229 A.D.2d 440, 644 N.Y.S.2d 900 [2nd Dept. 1996] ).
The branch of Nicholas L. D'Alessandro petition seeking an order directing the City Respondents herein to serve and file certain documents pursuant to CPLR 2307 is granted.
The City Respondents are directed to comply with the petitioner's discovery request on or before April 20, 2018. The parties are directed to appear in Part 52 on Tuesday, May 1, 2018, at 10:00 am for a conference and further proceedings on the instant petition.
The foregoing constitutes the decision and order of this Court.
Francois A. Rivera, J.
Response sent, thank you
Docket No: 1556/17
Decided: February 21, 2018
Court: Supreme Court, Kings County, New York.
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