Delahunty v. Bd. of Trs. of New York City Fire Dep't, 173 A.D.2d 212 (N.Y. App. Div. 1991). · Go Syfert
Delahunty v. Bd. of Trs. of New York City Fire Dep't, 173 A.D.2d 212 (N.Y. App. Div. 1991). Cases Citing This Book View Copy Cite
1 citation event across 1 distinct court.
Strongest positive: Gibbs v. New York City Employees' Retirement System (nyappdiv, 1992-03-26)
Top citers, strongest first. 1 distinct citer. How cited ↗
discussed Cited as authority (rule) Gibbs v. New York City Employees' Retirement System
N.Y. App. Div. · 1992 · confidence medium
The Board of Trustees properly relied upon the recommendation of the Medical Board, comprised of three physicians each of whom examined petitioner (see, Matter of Christian v New York City Employees’ Retirement Sys., 56 NY2d 841, 843 ; Matter of Delahunty v Board of Trustees, 173 AD2d 212, 213 [1st Dept 1991], lv dismissed 78 NY2d 982 ).
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In the Matter of Kevin J. Delahunty
v.
Board of Trustees of the New York City Fire Department
Appellate Division of the Supreme Court of the State of New York.
May 7, 1991.
173 A.D.2d 212
Cited by 1 opinion  |  Published

Judgment, Supreme Court, New York County (Leonard Cohen, J.), entered April 26, 1990, which denied and dismissed the CPLR article 78 petition seeking to vacate and annul respondent Board of Trustees of the New York City Fire Department’s determination granting petitioner ordinary disability retirement benefits and denying him accident disability retirement, unanimously affirmed, without costs.

Petitioner argues the Medical Board’s failure to set forth the basis for its finding that petitioner’s disabling condition is unrelated to a line of duty automobile accident renders the Board of Trustees’ reliance thereon "without foundation”, and thus arbitrary and capricious. However, respondent’s determination expressly relied upon medical evidence showing petitioner was disabled by a degenerative disease of the lower back.

Petitioner’s further claim that the automobile accident aggravated a dormant or asymptomatic lumbar condition, resulting in his disability (see generally, Matter of Tobin v Steisel, 64 NY2d 254), is unsubstantiated by medical opinion. Petitioner, as an applicant for accident disability benefits, has the burden of establishing that disability is causally related to a line of duty accident (Matter of Drayson v Board of Trustees, 37 AD2d 378, affd 32 NY2d 852). The medical report of petitioner’s own physician nowhere states that the automobile accident aggravated a pre-existing lumbar condition. Indeed, petitioner’s physician made no mention whatsoever of petitioner’s degenerative disc disease, but rather, opined that petitioner’s disability was the direct and proximate result of the automobile accident. Where, as here, a conflict in medical opinion exists, the Trustees are entitled to rely on the report and recommendation of the Medical Board (Matter of Drayson v Board of Trustees, supra). Further, the record indicates both the Medical Board and Board of Trustees considered petitioner’s aggravation argument and rejected it based upon a review of the medical evidence presented (cf., Matter of Meyer v McGuire, 64 NY2d 1152). Concur—Carro, J. P., Milonas, Asch, Kassal and Rubin, JJ.