IN RE: Application of William KENNY

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of William KENNY, Petitioner-Appellant, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents-Respondents.

Decided: February 08, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, LERNER and BUCKLEY, JJ. Daniel B. Gazan, for Petitioner-Appellant. John Hogrogian, for Respondents.

Order, Supreme Court, New York County (Charles Tejada, J.), entered September 13, 1999, which denied petitioner's application to annul respondents' denial of petitioner's application for accidental disability retirement benefits and dismissed the petition, unanimously affirmed, without costs.

We reject petitioner's argument that respondents failed to consider medical evidence that the back condition for which he was retired with ordinary retirement benefits was aggravated, and rendered disabling, by his line-of-duty accident.   Such evidence was expressly considered, and indeed convinced the Board of Trustees to twice remand the matter to the Medical Board.   On the basis of an MRI examination and considerable other medical evidence indicating a preexisting, chronic degenerative disc disease that was already well-advanced at the time of the accident, the Board found no causal relationship between the condition and the accident.   Since the denial of accidental disability retirement benefits was the result of a tie vote by the Board of Trustees on the issue of whether petitioner's disability was causally related to his accident, such denial may not be judicially disturbed “as long as there was any credible evidence of lack of causation before the Board of Trustees” (Matter of Meyer v. Board of Trustees, 90 N.Y.2d 139, 145, 659 N.Y.S.2d 215, 681 N.E.2d 382).   That was the case here.