IN RE: Philip D. DEPASQUALE (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 May 11, 2023, denying the petitioner's application for World Trade Center disability retirement benefits pursuant to Retirement and Social Security Law § 605(h), the New York City Employees' Retirement System, the Board of Trustees of the New York City Employees' Retirement System, the Medical Board of the New York City Employees' Retirement System, and the City of New York appeal from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated September 18, 2024.  The judgment granted the petition to the extent of annulling the determination and directing that the petitioner be provided with World Trade Center disability retirement benefits.

ORDERED that the judgment is affirmed, with costs.

The petitioner, who worked as a sanitation worker for the New York City Department of Sanitation for more than 20 years, was a first responder at the World Trade Center site following the attacks on September 11, 2001.  In April 2016, the petitioner applied for disability retirement benefits (hereinafter WTC disability benefits) pursuant to Retirement and Social Security Law § 605(h), also known as the World Trade Center Disability Law, alleging that he was disabled due, inter alia, to post-traumatic stress disorder (hereinafter PTSD), anxiety, major depressive disorder, gastroesophageal reflux disease, and rhinosinusitis and that his conditions were caused by the psychological trauma and physical exposure to toxins while serving as a first responder.

In February 2017, the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) determined that the petitioner was not disabled from performing his duties as a sanitation worker.  The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) adopted the Medical Board's determination and denied the petitioner's application for WTC disability benefits.

In May 2018, the petitioner, refiled his application for WTC disability benefits, and the Medical Board again determined that the petitioner was not disabled from performing his duties as a sanitation worker.  Subsequently, the petitioner sent a letter requesting a reconsideration of the Medical Board's determination.  The New York City Employees' Retirement System (hereinafter NYCERS) responded by offering the petitioner an opportunity to submit new medical evidence to support his claim and held his claim in abeyance.  The petitioner submitted additional medical evidence.

In light of the new evidence, the Medical Board deferred recommendation and requested reevaluation by NYCERS' consulting psychiatrist.  Following the reevaluation, the Medical Board again recommended that the petitioner's application be denied.  Thereafter, the Board of Trustees adopted the recommendation.  In May 2020, the petitioner commenced a proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees.  In an order dated May 3, 2021, the Supreme Court concluded that the determination was arbitrary and capricious and remanded the matter to NYCERS for reconsideration.

In October 2022, the Medical Board determined that the petitioner was not disabled from performing his duties as a sanitation worker.  On May 11, 2023, the Board of Trustees adopted that determination and denied the petitioner's application for WTC disability benefits.  In August 2023, the petitioner commenced this proceeding against NYCERS, the Board of Trustees, the Medical Board, and the City of New York (hereinafter collectively the City parties), among other things, pursuant to CPLR article 78 to review the Board of Trustees' determination dated May 11, 2023.  In a judgment dated September 18, 2024, the Supreme Court granted the petition to the extent of annulling the determination and directing that the petitioner be provided with WTC disability benefits.  The City parties appeal.

A member of NYCERS who participated in the World Trade Center rescue, recovery, or clean-up operations following the terrorist attacks on September 11, 2011, may apply for disability retirement benefits under Retirement and Social Security Law § 605.  If the applicant for such benefits suffers from “any 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” (id. § 605[h][1][a] ).

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 (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760;  Matter of LaBella v New York City Employees' Retirement Sys., 232 AD3d 793, 795).  The Medical Board's determination 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 AD3d at 795).  Credible evidence “is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered, and ․ must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion” (Matter of Rosa v New York City Employees' Retirement Sys., 227 AD3d 810, 813 [internal quotation marks omitted] ).  “In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis” (Matter of Gibson v Commissioner of the N.Y. State Dept. of Motor Vehs., 223 AD3d 667, 667–668 [internal quotation marks omitted] ).

Contrary to the City parties' contention, the determination of the Medical Board that the petitioner was not disabled from performing his job duties was not supported by credible evidence and was arbitrary and capricious (see Matter of LaBella v New York City Employees' Retirement Sys., 232 AD3d at 795).  To the extent that the Medical Board relied on the report of NYCERS' consulting psychiatrist Bruce David, that report did not support a determination that the petitioner was not disabled from performing his job duties.  While David opined that the petitioner's presentation was not consistent with any psychiatric disorder aside from a personality disorder, his opinion was inconsistent with the evidence in the record and lacked a rational basis for disregarding findings from providers who concluded, inter alia, that the petitioner presented with PTSD symptoms that prevented him from performing his duties.  Thus, David's report did not provide a rational basis for the Medical Board's determination (see Matter of LaBella v New York City Employees' Retirement Sys., 232 AD3d at 796).

Moreover, the Medical Board failed to present credible evidence to rebut the statutory presumption that the petitioner's disability was caused by his activities at the World Trade Center site (see LaBella v New York City Employees' Retirement Sys., 232 AD3d at 797).

Accordingly, the Supreme Court properly granted the petition to the extent of annulling the Board of Trustees' determination and directing that the petitioner be granted World Trade Center disability retirement benefits.

The parties' remaining contentions are without merit.

DILLON, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.