Lidakis v. N.Y. City Employees' Ret. Sys.

• Decision Date: 26 April 2010
• Citation: 899 N.Y.S.2d 816,27 Misc.3d 1150
• Parties: In the Matter of the Application of Emmanuel LIDAKIS, Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. The NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM and the City of New York, Respondents.
• Court: New York Supreme Court

899 N.Y.S.2d 816

27 Misc.3d 1150

In the Matter of the Application of Emmanuel LIDAKIS, Petitioner,For a judgment pursuant to Article 78 of the Civil Practice Law and Rules,

v.The NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM and the City of New York, Respondents.

Supreme Court, Kings County, New York.

April 26, 2010.

Jeffrey L. Goldberg, PC, Lake Success, for petitioner.

Michael A. Cardozo by David R. Priddy, Esq., Corp. Counsel, New York, for respondent.

ARTHUR M. SCHACK, J.

Petitioner EMMANUEL LIDAKIS (LIDAKIS), in this CPLR Article 78 proceeding, seeks a judgment: directing respondents, THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM (N.Y.CERS) and THE CITY OF NEW YORK (CITY) give him the option to be examined by a Special Medical Committee, pursuant to Retirement and Social Security Law (RSSL) § 607-b and New York City Administrative Code § 13-169; or, in the alternative, annul NYCERS' Board of Trustees (Board of Trustees) March 12, 2009 decision rescinding petitioner's "performance of duty disability" retirement (PDD retirement), pursuant to RSSL § 607-b, and remanding his case for further review based upon the substantial medical evidence in the record. Respondents oppose and seek dismissal of the instant petition.

NYCERS' Board of Trustees granted petitioner a "three-quarters pay" PDD retirement pension, on April 12, 2007, when it approved the February 14, 2007 findings of NYCERS' Medical Board, subject to a medical review the next year, pursuant to RSSL § 607-b, the RSSL section concerned with PDD pensions for New York City Fire Department (FDNY) Emergency Medical Technicians (EMT's). The Medical Board reexamined petitioner on March 20, 2008 and reviewed new evidence. It found that petitioner was no longer disabled and recommended discontinuation of petitioner's PDD retirement. Petitioner provided additional medical documentation to NYCERS' Board of Trustees. However, NYCERS' Board of Trustees, on March 12, 2009, approved the March 20, 2008 Medical Board findings without ever remanding the new medical documentation to the Medical Board or giving statutory notice to petitioner that he had a right to review by a SpecialMedical Committee, pursuant to New York City Administrative Code § 13-169, in furtherance of petitioner's rights afforded by RSSL § 607-b.

This appears to be a case of first impression. NYCERS and the CITY claim that after granting a PDD retirement to a NYCERS member and then subsequently rescinding that benefit, the NYCERS member, to his or her detriment, has no right to appeal to the statutorily created Special Medical Committee. This is arbitrary, capricious and an abuse of discretion. Thus, because respondents deprived petitioner his statutory right of review by a Special Medical Committee, the instant petition is granted to the extent that respondents are directed to give petitioner the option of filing a written request for review of his PDD retirement status by a Special Medical Committee, in accordance with RSSL § 607-b and New York City Administrative Code § 13-169.

Background

Petitioner, on November 5, 1999, was appointed to the FDNY as an EMT. He became a Tier IV member of NYCERS, pursuant to New York City Administrative Code § 13-104. On September 28, 2003, petitioner, in the performance of his duties, sustained a sprain to his right knee while carrying a patient down stairs. On January 24, 2005, petitioner, in the performance of his duties, sustained injuries to his right and left knees when he slipped on ice and fell on his knees while getting into an FDNY vehicle. The FDNY Medical Board Committee, on February 1, 2005, found petitioner unfit for duty, with permanent right knee disability. Subsequently, on March 15, 2005, petitioner sustained a left knee injury when a box fell on his knee while he was arranging supplies at a hospital, in the performance of his duties.

Petitioner, on December 13, 2006, filed an application for PDD retirement, pursuant to RSSL § 607-b. PDD retirement for an EMT is equivalent to "accident disability retirement" (ADR), the term used for a "three-quarters pay" disability retirement pension sustained in the line of duty for most NYCERS' members. NYCERS' Medical Board, on February 14, 2007, interviewed and examined petitioner. The Medical Board, in its February 14, 2007 Report, stated, that on February 10, 2005, petitioner's orthopedist, Albert Graziosa, M.D. (Dr. Graziosa), diagnosed petitioner as having left knee sprain with involvement of the medial collateral ligament, and that after that date, petitioner was seen at approximately one-month intervals by Dr. Graziosa. Dr. Graziosa continued his diagnosis, and, at times, his diagnosis also included internal derangement of petitioner's left knee. The Medical Board Report further noted that Dr. Graziosa's May 12, 2006 report also included an impression of stage II degenerative changes of petitioner's left knee at the posterior horn of the medialmeniscus and osteoarthritis. The Medical Board examined petitioner and found puffiness in petitioner's left knee and a perceptible fullness, as compared to petitioner's right knee. Further, the Medical Board found petitioner's left knee lacked 15 degrees from full extension, displayed 1+ anterior posterior drawer sign on the left, and minimal crepitation on active and passive motion of petitioner's left knee. However, the Medical Board found the range of motion of petitioner's right knee to be full with no crepitation of motion and normal stability.

The Medical Board, based upon the documentary and clinical evidence, in its February 14, 2007 Report, diagnosed petitioner with chronic synovitis of the left knee and found petitioner disabled from performing his duties as an FDNY EMT, with the January 24, 2005 and March 15, 2005 incidents being the competent causes ofpetitioner's disability. Therefore, the Medical Board recommended approval of petitioner' s application for a PDD pension, pursuant to RSSL § 607-b, and added in its Report, "[h]owever, the Medical Board does not feel that the disability is permanent. The Board would, therefore, like to re-examine [petitioner] in one year."

NYCERS' Board of Trustees, on April 12, 2007, adopted the Medical Board's recommendation and approved petitioner's PDD pension, pursuant to RSSL § 607-b and established his retirement date as February 25, 2007. The Board of Trustees, in a letter dated April 13, 2007, advised petitioner that if he did not wish to be retired, he could commence a CPLR Article 78 proceeding. It further advised him that he could alternatively have his bargaining representative or the head of the agency in which he was employed, request, on his behalf, review by a Special Medical Committee made up of three independent doctors, and that if he elected to have such a review, he would be required to submit a waiver within 45 days of the receipt of that letter, and that the recommendation of the physicians on the Special Medical Committee would be final and conclusive.

The Medical Board, on March 20, 2008, reexamined petitioner to determine if he was still disabled from performing his duties as an EMT. It also reviewed new medical evidence, including: a June 29, 2005 MRI of petitioner's right knee which found grade II degenerative change in the posterior horn of the medial meniscus; a December 19, 2006 report by Dr. Graziosa, which stated that petitioner had a mild to moderate partial disability because of injuries to his left knee, with a guarded to fairprognosis; and, several other Dr. Graziosa reports, which essentially all stated that petitioner had a mild to moderate partial disability, with a guarded prognosis, left medial collateral ligament strain and grade 2 changes in the posterior horn of the medial meniscus with chondromalacia of the patella. Petitioner stated to the Medical Board that since his last examination by the Medical Board the pain in his right knee had become more severe. The Medical Board examined petitioner, finding that petitioner "had normal range of motion in both knees without instability, effusion, or crepitus," "measurements of petitioner's thighs were 17-1/2 inches bilaterally," and "no swelling of either extremity and pulses were normal."

The Medical Board, in its March 20, 2008 Report, after considering the submitted medical evidence and the findings of its own examination, found petitioner no longer disabled from performing the duties of an FDNY EMT. Therefore, the Medical Board recommended discontinuation of petitioner's PDD retirement, pursuant to RSSL § 607-b, and placing petitioner on a preferential hiring list. NYCERS, in a letter dated March 26, 2008, notified petitioner of the Medical Board's recommendation.

Then, petitioner submitted additional medical documentation to the Board of Trustees and requested that his case be referred back to the Medical Board for further review. This documentation included reports from Robert A. Marini, M.D., a pain management specialist. Dr. Marini, in his August 11, 2008 report, stated that petitioner had right knee internal derangement with chronic pain syndrome. His September 5, 2008 report stated that petitioner had left knee internal derangement with chronic pain syndrome. In addition, petitioner submitted MRI's, dated May 1, 2008, showing a right knee tear of the posterior horn of the medial meniscus, proximal scarring of the medial collateral ligament, with joint effusion in his right knee, and anterior cruciate ligament scarringand joint effusion of the left knee. Petitioner also submitted several additional Dr. Graziosa reports, the most recent dated March 25, 2009, stating an impression of bilateral knee derangement with associated osteoarthritis, severe chondromalacia and chronic pain syndrome.

NYCERS' Board of Trustees, at various times, tabled remanding petitioner's case with the additional submitted medical evidence to the Medical Board. However, in a letter, dated May 14, 2009, the Board of Trustees notified petitioner...