IN RE: Robert MCCRACKEN (2026)

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated December 10, 2020, which denied the petitioner's application for World Trade Center disability retirement benefits pursuant to the Administrative Code of the City of New York § 13–168, the appeal is from a judgment of the Supreme Court, Kings County (Katherine Levine, J.), dated January 11, 2024.  The judgment granted the petition to the extent of annulling the determination and directed that the petitioner be provided with World Trade Center disability retirement benefits retroactive to December 10, 2020.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof directing that the petitioner be provided with World Trade Center disability retirement benefits retroactive to December 10, 2020;  as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Board of Trustees of the New York City Employees' Retirement System for further proceedings in accordance herewith.

The petitioner was an emergency medical specialist paramedic for the New York City Fire Department and a first responder at the World Trade Center site following the attacks on September 11, 2001.  He subsequently retired with the title of supervising emergency medical service specialist chief.  In March 2019, the petitioner applied to the New York City Employees' Retirement System (hereinafter NYCERS) for World Trade Center disability retirement benefits pursuant to Administrative Code of the City of New York § 13–168, based on injuries he suffered at the World Trade Center site.  He alleged, among other things, that he suffered from herniated lumbar discs.

In June 2019, the Medical Board of NYCERS (hereinafter the Medical Board) determined that the documentary and clinical evidence failed to substantiate that the petitioner was disabled from performing the duties of an emergency medical service specialist chief.  In November 2019, the Board of Trustees of NYCERS (hereinafter the Board of Trustees) remanded the petitioner's application back to the Medical Board for consideration of new medical evidence.  In September 2020, the Medical Board again recommended denial of the petitioner's application.  On December 10, 2020, the Board of Trustees adopted the Medical Board's recommendation and denied the petitioner's application.

In April 2021, the petitioner commenced this proceeding, inter alia, pursuant to CPLR article 78 to review the Board of Trustees' determination.  In a judgment dated January 11, 2024, the Supreme Court granted the petition to the extent of annulling the Board of Trustees' determination and directed that the petitioner be provided with World Trade Center disability benefits retroactive to December 10, 2020.  This appeal ensued.

NYCERS members, such as the petitioner, holding or retired from eligible positions, may apply for disability retirement benefits under Administrative Code § 13–168 (see id.;  see also Retirement and Social Security Law § 607–b).  Where, as here, an applicant participated in the World Trade Center rescue, recovery, or clean up operations following the September 11, 2001, terrorist attacks suffers from a condition or impairment of health caused by a qualifying World Trade Center condition, a presumption attaches that such condition or impairment of health was incurred in the performance and discharge of duty and the natural and proximate result of an accident unless the contrary is proved by competent evidence (see Administrative Code § 13–168[b][5][b][1];  see also Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 N.Y.3d 268, 276, 281–282, 958 N.Y.S.2d 680, 982 N.E.2d 600 (2012)).

“The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board's finding that an applicant is, or is not, disabled for duty” (Matter of LaBella v. New York City Employees' Retirement Sys., 232 A.D.3d 793, 795, 223 N.Y.S.3d 125 (2024) [internal quotation marks omitted];  see Matter of Castellanos v. New York City Employees' Retirement Sys., 241 A.D.3d 822, 823, 241 N.Y.S.3d 364 (2025)).  “[T]he dispositive issue is whether the petitioner was permanently incapacitated from performing his actual job duties” (Matter of LaBella v. New York City Employees' Retirement Sys., 232 A.D.3d at 796, 223 N.Y.S.3d 125 [alteration, emphasis, and internal quotation marks omitted];  see Matter of Haag v. DiNapoli, 201 A.D.3d 1179, 1180, 162 N.Y.S.3d 184 (2022)).

In a proceeding pursuant to CPLR article 78 to review a final determination on an application for disability retirement benefits, the Medical Board's finding with regard to the presence of a disability is conclusive if it is supported by some credible evidence and is not arbitrary or capricious (see Matter of Labella v. New York City Employees' Retirement Sys., 232 A.D.3d at 795, 223 N.Y.S.3d 125;  Matter of Russell v. New York City Employees' Retirement Sys., 155 A.D.3d 1046, 1046, 66 N.Y.S.3d 35 (2017)).  “Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered․[I]t  must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion” (Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 N.Y.3d at 281, 958 N.Y.S.2d 680, 982 N.E.2d 600 [citation and internal quotation marks omitted];  see Matter of Kearney v. Nigro, 209 A.D.3d 1024, 1026, 177 N.Y.S.3d 339 (2022)).  Although the Medical Board is “entitled to resolve conflicts in the medical evidence and rely on its own physical examinations of the petitioner, fairness demands that all available relevant medical evidence be considered by the medical board and the board of trustees before the petitioner's claim to accident disability retirement may properly be rejected, and that the Medical Board clearly state the reasons for its recommendations” (Matter of Hodge v. New York City Employees' Retirement Sys., 224 A.D.3d 687, 689, 205 N.Y.S.3d 420 (2024) [citation, alteration, and internal quotation marks omitted];  see Matter of Agnelli v. Kelly, 96 A.D.3d 471, 471, 945 N.Y.S.2d 690 (2012)).

Here, the Medical Board failed to adequately explain the reasoning for its determination in light of the job description and certification requirements of a supervising emergency medical service specialist chief, which, among other things, required paramedics to be able to transport an average of 40 pounds of equipment over at least 6–10 flights of stairs and to lift patients weighing more than 200 pounds onto a stretcher and ambulance (see Matter of Hodge v. New York City Employees' Retirement Sys., 224 A.D.3d at 689, 205 N.Y.S.3d 420;  Matter of Reynolds v. New York City Fire Pension Fund, 210 A.D.3d 484, 484–485, 178 N.Y.S.3d 30 (2022)).  However, as the record remains unclear as to whether the petitioner's injuries rendered him disabled from performing his actual job duties, the Supreme Court should have remanded the matter for new medical findings and reports by the Medical Board and a new determination by the Board of Trustees (see Matter of Agnelli v. Kelly, 96 A.D.3d at 472–473, 945 N.Y.S.2d 690;  Matter of Rodriguez v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 3 A.D.3d 501, 501–502, 770 N.Y.S.2d 132 (2004);  see also Matter of Hodge v. New York City Employees' Retirement Sys., 224 A.D.3d at 689, 205 N.Y.S.3d 420).

The appellants' remaining contention need not be reached in light of our determination.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.