In the Matter of Molen v. Kelly

• Decision Date: 12 October 2004
• Docket Number: 4240.
• Citation: 782 N.Y.S.2d 440,11 A.D.3d 253,2004 NY Slip Op 07245
• Parties: In the Matter of SCOTT M. MOLEN, Appellant, v. RAYMOND W. KELLY, as Police Commissioner of the City of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

11 A.D.3d 253

782 N.Y.S.2d 440

2004 NY Slip Op 07245

In the Matter of SCOTT M. MOLEN, Appellant, v. RAYMOND W. KELLY, as Police Commissioner of the City of New York, et al., Respondents.

4240.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 12, 2004.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered September 4, 2003, which denied petitioner's application to annul a determination denying him an accidental disability pension by virtue of a tie vote of respondent Board of Trustees, and dismissed the petition, unanimously affirmed, without costs.

The record contains some credible evidence that the disabling instability of petitioner's knee was caused only by his nonservice-related fall in July 1998, and that a service-related fall in April 1995 did not leave the knee in such a weakened condition as to precipitate the 1998 fall (see Matter of Meyer v Board of Trustees, 90 NY2d 139, 145, 147 [1997]). Such evidence includes the Medical Board's finding upon examination, amply corroborated by petitioner's complete medical record, that the instability was the result of damage to the anterior cruciate ligament, which was uninjured in 1995; the Medical Board's additional finding that the remaining ligaments of the knee, which would include the medial collateral ligament damaged in 1995, were intact; and petitioner's private orthopaedist's finding shortly after the 1995 accident of "no gross instability" in the knee.

Concur — Buckley, P.J., Nardelli, Andrias, Saxe and Lerner, JJ.