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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), 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 to D'Alessandro a line of duty accident disability retirement (hereinafter ADR); (b) directing the City Respondents to grant D'Alessandro'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 D'Alessandro's 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.
Notice of petition
City Respondent's memorandum of law in opposition to the petition
D'Alessandro's reply Memorandum of law
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 alleges ninety allegations of fact, two affirmative defenses and annexes twenty six exhibits.
D'Alessandro's notice of petition, verified petition and accompanying exhibits seek, among other things, to vacate and reverse a decision by the City Respondents to deny his application for ADR benefits.
By decision and order issued on February 21, 2018, the Court granted that 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. The City Respondents were directed to comply with the petitioner's discovery request on or before April 20, 2018 and the parties were directed to appear in Part 52 on Tuesday, May 1, 2018, at 10:00 A.M. for a conference and further proceedings on the instant petition.
LAW AND APPLICATION
As directed, the parties appeared on May 1, 2018, for a conference and further proceedings. The petitioner advised the Court that the City Respondents had complied with the Court's order of February 21, 2018. On May 1, 2018, the Court deemed the petition fully submitted for adjudication.
According to the verified petition, the respondent Daniel A. Nigro is at all times the Fire Commissioner of the New York City Fire Department and Chairman of the Board of Trustees of its Article I–B Pension Fund (hereinafter the Pension Fund). D'Alessandro was at all material times a member of the Pension Fund.
It is undisputed that on January 13, 2016, while working full duty, D'Alessandro sustained an injury to his right knee and left shoulder (hereinafter the subject injury) at a fire at Box No. 7305 in Queens, New York. On the same date, he was treated and released from Elmhurst Medical Emergency Service.
In February and April of 2016, D'Alessandro sought and obtained treatment for the subject injury from 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 subject injury. On January 14, 2016, the FDNY Bureau of Health Services (hereinafter BHS) placed him on service connected medical leave based on the subject injury. D'Alesandro never returned to duty 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 D'Alessandro 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 an acute injury from the January 13, 2016 incident. 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 Pension Fund Board of Trustees 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 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 NY 559 .
D'Alessandro seeks judicial review of the denial of his application for ADR, alleging he is permanently disabled on account of his right knee and left shoulder, as a proximate result of a line of duty injury of January 13, 2016. At the time of the subject injury D'Alessandro was 61 years old and had 37 years of service.
D'Alessandro agrees with the BHS determination that he was unfit for full firefighting duties due to his right knee and left shoulder injury. He disagrees with the determination that it was not causally linked to the January 13, 2016 incident.
The New York City Fire Department Pension Fund is administered by the Board of Trustees pursuant to Title 13 of the Administrative Code of the City of New York (Meyer v. Board of Trustees of the New York City Fire Dept., Article 1–B Pension Fund by Safir, 90 NY2d 139, 144 ). A firefighter is entitled to ADR when a medical examination and investigation shows that he or she is “physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service” (Administrative Code § 13—353) (Id.)
Like other City pension funds and retirement systems, application for ADR involves a two-tier administrative process (Id., citing, Matter of Borenstein v. New York City Employees' Retirement Sys., 88 NY2d 756, 760 ). Following a medical examination (which in each of these cases was conducted by the Fire Department medical committee), the three-physician member pension fund Medical Board, charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application (see, Administrative Code § 13—323), determines whether the member is disabled for performance of duty and ought to be retired (Administrative Code § 13—352) (Meyer, 90 NY2d at 144).
If the Medical Board concludes that the member is disabled, it must further determine whether the disability is “a natural and proximate result of an accidental injury received in such city-service” and certify its recommendation on this issue to the Board of Trustees, the body ultimately responsible for retiring the pension fund member and determining the issue of service-related causation (Administrative Code §§ 13—353, 13—323[b]; (Meyer, 90 NY2d at 144; citing, Matter of Russo v. Board of Trustees, 143 AD2d 674, 676 ).
Where, as here, the Medical Board finds the firefighter disabled for performance of duty and the Board of Trustees becomes deadlocked on the issue of whether the disabling condition is causally related to the service-related injuries, and is thus unable to pass by majority vote a resolution retiring the firefighter for ordinary or accidental disability, by a time-honored procedural practice the application for accidental disability retirement is denied and the lesser ordinary disability benefits are awarded (Meyer, 90 NY2d at 145).
On subsequent review in an Article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless “it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident” (Id., citing Matter of Canfora v. Board of Trustees, 60 NY2d 347 ). The reviewing court may only disturb the final award by finding causation established as a matter of law, however, as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand (Id. citing Matter of Canfora, 60 NY2d at 351).
The Medical Board reviewed, among other things, D'Alessando application for ADR, the reports of Drs. Kelly and Shah, his treating orthopedic surgeons; the Elmhurst Hospital Center Emergency room records, multiple diagnostic MRI studies and reports of his right knee and left shoulder and multiple prior service injury reports. The Medical Board noted that the Elmhurst Hospital Center Emergency room records of D'Alessandro's examination on the day of the injury contained no mention of an acute injury. Furthermore, the x-rays of the right knee and left shoulder showed degenerative joint disease. The Medical Board's decision was rational and based on a fact based medical assessment. Consequently, D'Alessandro failed to establish as a matter of law that his degenerative joint disease was proximately caused by the injury of January 13, 2016.
Nicholas L. D'Alessandro petition for an order pursuant to CPLR Article 78 annulling the action of Daniel A. Nigro denying to D'Alessandro a line of duty accident disability retirement benefit is denied.
Nicholas L. D'Alessandro petition for an order pursuant to CPLR Article 78 directing the respondents to review D'Alessandro's case based on the law and facts set forth in the verified petition is denied.
The decision of the Pension Fund Medical Board and Pension Fund Board of Trustees to deny D'Alessandro's application for accidental disability retirement benefits is affirmed, the petition is denied and the Article 78 proceeding is dismissed.
The foregoing constitutes the decision and order of this Court.
Francois A. Rivera, J.
Response sent, thank you
Docket No: 1556/17
Decided: May 07, 2018
Court: Supreme Court, Kings County, New York.
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