Carter v. N.Y. City Employees' Ret. Sys.
| Decision Date | 15 December 2010 |
| Citation | 913 N.Y.S.2d 534,31 Misc.3d 430 |
| Parties | In the Matter of the Application of Ava CARTER, Petitioner, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM and The City of New York, Respondents. |
| Court | New York Supreme Court |
Chet Lukaszewski, PC, Lake Success NY, Petitioner.
Ilyse Sisolak, Esq., Michael A. Cardozo, Corp. Counsel of the CIty of New York, N.Y. NY, Respondent.
Petitioner AVA CARTER (CARTER) seeks: a judgment, pursuant to CPLR Article 78:(a) annulling the actions of respondents, NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM (NYCERS) and THE CITY OF NEW YORK, by their refusal to consider her disability pension application under New York State Retirement and Social Security Law (RSSL) § 607-b, the line of duty disability pension retirement law which protects Emergency Medical Service workers in the Fire Department of the City of New York (FDNY); (b) awarding petitioner CARTER a disability pension pursuant to RSSL § 607-b or remanding her disability pension application back to respondent NYCERS for additional consideration; and, (c) for an order, pursuant to CPLR § 2307 directing respondents to serve and file: all reports, recommendations, certificates and other documents submitted to NYCERS in connection with petitioner CARTER's disability retirement application and for copies of any and all medicalrecords, reports or notes relating to petitioner CARTER which are on file with NYCERS.
Respondents oppose the instant petition, claiming that: (a) the instant petition is barred by the statute of limitations; and, (b) petitioner CARTER was not eligible for an RSSL § 607-b line of duty disability pension because her employment was terminated prior to applying for a pension.
The Court, as will be explained following, finds that the instant petition is timely and not barred by the statute of limitations. However, petitioner CARTER was not eligible for an RSSL § 607-b pension when she applied for pension benefits. Therefore, the instant petition is denied and this proceeding is dismissed.
Petitioner CARTER began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner CARTER was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner CARTER was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner Carter, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner CARTER stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner CARTER underwent carpal tunnel release surgeries.
Subsequently, petitioner CARTER was diagnosed as suffering from reflex sympathetic dystrophy (RSD) and complex regional pain syndrome (CRPS). RSD is defined as a condition characterized by diffuse pain, swelling and limitation of movement that follows an injury such as a fracture of an arm or leg. The symptoms are out of proportion to the injury and may linger long after the injury has healed. ( See http:// www. medicinenet. com). CRPS, also called reflex sympathetic dystrophy syndrome, is a chronic pain condition in which levels of nerve impulses are sent to an affected site. Experts believe that CRPS occurs as a result of a dysfunction in the central or peripheral nervous systems. ( See http:// www. medicinenet. com).
FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008. Then, FDNY, by letter dated August 20, 2008, informed petitioner CARTER that her employment had been terminated as of August 11, 2008, pursuant to Civil Service Law § 71, also known as a medical separation. On March 3, 2009, petitioner CARTER was implanted with a spinal cord stimulator to alleviate her pain.
Petitioner CARTER, on May 9, 2007, applied for a line of duty disability pension (also called a performance duty disability pension), pursuant to RSSL § 607-b, because of her hand and spinal conditions. NYCERS' Medical Board, on June 21, 2007, denied this application. NYCERS' Board of Trustees, on October 11, 2007, ratified this recommendation. Petitioner CARTER, on June 25, 2007, filed for a non line of duty disability pension, pursuant to RSSL § 605 and, again, for a line of duty pension, pursuant to RSSL § 607-b. Again, the Medical Board recommendeddenial of the applications and the Board of Trustees ratified the denial recommendation on February 14, 2008. Petitioner CARTER appealed this decision by filing for a final medical review, in March 2008. Then, in May 2008, a special medical review committee found her fit for full EMT duty and denied her application. Petitioner CARTER, in July 2008, was awarded Social Security Disability benefits, based upon a finding that she was medically unfit for any job.
Petitioner CARTER, on January 14, 2009, again filed for a non line of duty disability retirement pension, pursuant to RSSL § 605, based upon her RSD and CRPS conditions, alleging these conditions had developed as a result of her line of duty activities and injuries. Thereafter, in a series of emails and letters exchanged between petitioner CARTER's attorney and respondents, commencing on June 3, 2009, petitioner CARTER requested that her application be amended to also request a pension pursuant to RSSL § 607-b, claiming that in error she marked only the circle requesting that her application be considered pursuant to RSSL § 605. Respondents refused to honor this request.
Petitioner CARTER, on August 27, 2009, was approved for a disability pension, pursuant to RSSL § 605, based upon a finding by the Medical Board that documentary and clinical evidence substantiated her claim that she was disabled from performing EMT duties with FDNY as a result of the placement of a permanent internal spinal cord stimulator and her history of RSD. The Medical Board, because petitioner CARTER had more than ten years of service when she applied for an RSSL § 605 pension, did not address the issue of whether she was injured as a proximate result of an injury sustained in the line of duty.
Petitioner CARTER then asked for copies of the Medical Board minutes and requested that she be permitted to appear before the Board of Trustees to request an upgrade to an RSSL § 607-b pension. The Medical Board did not furnish petitioner CARTER with the minutes and her request to appear before the Board of Trustees was denied because respondents found her to be ineligible for an RSSL § 607-b pension. Petitioner CARTER received correspondence from respondents, dated October 9, 2009, stating that her application for retirement had been finalized at the October 8, 2009 meeting of the Board of Trustees, at which time her RSSL § 605 pension had been approved.
Petitioner commenced the instant proceeding, challenging the October 8, 2009 determination, on January 28, 2010. Petitioner does not challenge the earlier denial of her pension applications.
Respondents, in opposition to the instant petition, argue that petitioner CARTER's challenge to the denial of an RSSL § 607-b pension is time barred, because this proceeding was not commenced within four months of respondents' determination that petitioner CARTER was not eligible for a line of duty injury pension, as required by CPLR § 217(1). This is predicated upon respondents' contention that June 4, 2009 emails from respondents' administrative personnel to petitioner CARTER's counsel, advising counsel that petitioner CARTER was not eligible for an RSSL § 607-b pension, because she was no longer employed at the time that she applied, was a final determination that started running the statute of limitations.
It is well settled that to commence a timely proceeding pursuant to CPLR Article 78, "a petitioner must seek review of a determination within four months after the determination to be reviewedbecomes final and binding." ( Matter of Barresi v. County of Suffolk, 72 A.D.3d 1076, 1076, 900 N.Y.S.2d 343 [2d Dept.2010], lv. denied 15 N.Y.3d 705, 908 N.Y.S.2d 158, 934 N.E.2d 892 [2010] ). ( See Walton v. New York State Dept. of Correctional Services, 8 N.Y.3d 186, 194-196, 831 N.Y.S.2d 749, 863 N.E.2d 1001 [2007]; Matter of Best Payphones v. Department of Information Technology & Telecommunications of the City of New York, 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ). "In addition, petitioner's direction of correspondence to respondents, which can be viewed, at most, as a request for reconsideration, does not toll or revive the Statute of Limitations."
( Matter of Lubin v. Board of Education of the City of New York, 60 N.Y.2d 974, 976, 471 N.Y.S.2d 256, 459 N.E.2d 481 [1983] ). ( See Edwards v. New York State Employees' Retirement System, 190 A.D.2d 545, 545, 593 N.Y.S.2d 1011 [1st Dept.1993], citing Matter of Cauldwest Realty v. City of New York, 160 A.D.2d 489, 554 N.Y.S.2d 153 [1st Dept.1990] ).
However, the Court rejects respondents' contention that petitioner CARTER's challenge of her denial of an RSSL § 607-b pension is time barred. NYCERS' Board of Trustees never made a final determination with respect to granting petitioner CARTER a line of duty disability pension, pursuant to RSSL § 607-b. The process by which a NYCERS' member applies for an for accidental disability retirement involves a two-tier administrative process. First, the three-physician member NYCERS' Medical Board...
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