McMikle v. The Dep't of Educ. of City of N.Y., Index No. 150697/2022

CourtUnited States State Supreme Court (New York)
Writing for the CourtARLENE BLUTH, J.S.C.
Citation2022 NY Slip Op 31830 (U)
PartiesASHLEY MCMIKLE, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, TEACHERS RETIREMENT SYSTEM OF THE CITY OF NEW YORK Respondent.
Decision Date10 June 2022
Docket NumberIndex No. 150697/2022,Motion Seq. No. 001

2022 NY Slip Op 31830(U)

ASHLEY MCMIKLE, Petitioner,
v.

THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, TEACHERS RETIREMENT SYSTEM OF THE CITY OF NEW YORK Respondent.

Index No. 150697/2022, Motion Seq. No. 001

Supreme Court, New York County

June 10, 2022


Unpublished Opinion

MOTION DATE 06/09/2022

PRESENT: HON. ARLENE BLUTH, Justice.

DECISION + ORDER ON MOTION

ARLENE BLUTH, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 were read on this motion to/for ARTICLE 78

The petition to reverse respondents' decision denying her Accident Disability Retirement ("ADR") benefits is denied.

Background

Petitioner worked for respondents, first as a substitute teacher starting in 1993 and then as a full-time teacher starting in 1996. She explains that in 2011, she became an "attendance teacher" which required her to travel to students' homes. During one such visit on January 10, 2014, petitioner claims that she slipped and fell on black ice. She claims she fell hard on her buttocks and left hand. Petitioner claims that she is now permanently disabled and can no longer perform her duties as an attendance teacher. She contends that she suffers from numerous ailments as a result of this accident and cannot perform the most mundane activities of daily life.

1

Petitioner applied for ADR benefits in May 2019 and respondents denied her request. Petitioner then commenced an Article 78 proceeding to challenge that decision and the justice assigned to the proceeding remanded the proceeding back to respondents for "reconsideration of the application after a comprehensive orthopedic and or neurologic exam of Petitioner" (NYSCEF Doc. No. 33).

The Medical Board reconsidered petitioner's condition and observed that at the time of the initial assessment, "the Medical Board concluded that the member [petitioner] did not sustain a career-ending disabling injury. The basis of that decision was that there were no objective findings on physical examination to substantiate permanent disability" (NYSCEF Doc. No. 30 at 48). The Medical Board detailed the records it reviewed, including reports from petitioner's neurologist (id. at 49). The report observed that the ER physician who treated petitioner on the day of her accident "documented that the member was in 'no apparent distress' regarding her general appearance. It was also noted by the ER physician that the member had mild tenderness to palpation at the bilateral lumbar spine. There was, however, no evidence of erythema, ecchymosis, or tenderness to palpation to the cervical or thoracic spine" (id.). According to these records, petitioner was in good condition when she was discharged and there were no x-rays, CT scans or MRIs performed (id. at 50).

After conducting another physical examination, the Medical Board concluded that "there is a lack of objective evidence to...

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