Diaz v. Kelly

• Decision Date: 14 August 2012
• Parties: In re Joel DIAZ, Petitioner–Respondent, v. Raymond W. KELLY, etc., et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 425

949 N.Y.S.2d 663

2012 N.Y. Slip Op. 05942

In re Joel DIAZ, Petitioner–Respondent,

v.Raymond W. KELLY, etc., et al., Respondents–Appellants.

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

Aug. 14, 2012.

Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for appellants.

Law Offices of Chet Lukaszewski, P.C., Lake Success (Chet Lukaszewski of counsel), for respondent.

GONZALEZ, P.J., SAXE, SWEENY, ACOSTA, RENWICK, JJ.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered January 13, 2011, which granted the petition to annul respondents' determination denying petitioner's request to amend his application for accidental disability retirement (ADR) benefits, and remanded the matter with the direction that petitioner be allowed to amend his application to include a heart-related disability, unanimously affirmed, without costs.

The Board's determination was arbitrary and capricious and an abuse of discretion ( seeCPLR 7803[3] ). At the time respondent Board denied petitioner's application for ADR benefits based on an orthopedic condition, petitioner had suffered a heart attack, and was incapacitated. Although the parties contest whether petitioner specifically notified a member of the Board of this incapacity, there is evidence in the record that petitioner's heart condition predated his retirement, but was not diagnosed until after he retired. Given these circumstances, petitioner's heart condition warranted consideration by the Medical Board ( see Matter of Mulheren v. Board of Trustees of Police Pension Fund, Art. II, 307 A.D.2d 129, 761 N.Y.S.2d 49 [2003],lv. denied100 N.Y.2d 515, 769 N.Y.S.2d 201, 801 N.E.2d 422 [2003] ).

We have considered respondents' remaining contentions and find them unavailing.

The Decision and Order of this Court entered herein on April 19, 2012 is hereby recalled and vacated ( see M—2468 decided simultaneously herewith).