| Matter of Picciurro v Board of Trustees of N.Y. City Police PensionFund, Art. II |
| 2007 NY Slip Op 09914 [46 AD3d 346] |
| December 18, 2007 |
| Appellate Division, First Department |
| In the Matter of Stephanie Picciurro, Appellant, v Board ofTrustees of the New York City Police Pension Fund, Article II,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth I. Freedman ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered January 5,2007, dismissing this proceeding to annul an administrative determination denying accidentaldisability retirement benefits, unanimously affirmed, without costs.
Petitioner, a since-retired New York City police officer, took a one-day voluntary assignmentto the post-9/11 recovery effort at the World Trade Center on September 12, 2001. Sooverwhelming was this experience that she was unable to return to the site the next day, despitebeing ordered to do so. When she refused to return to Ground Zero on September 13, she wasallegedly humiliated and handcuffed by her superior officer in front of her peers, who thereaftersubjected her to taunting, causing her to suffer post-traumatic stress disorder and depression. Thisallegedly rendered her incapable of performing full duties as a police officer and formed the basisof her January 5, 2005 application for accidental disability retirement (ADR). Petitioner arguesthat the aforementioned events either precipitated the development of a latent problem oraggravated a preexisting psychiatric condition that had not manifested itself in the eight years offull duty service immediately prior to September 12 and 13, 2001, with the exception of oneweek in 1999 when she was reassigned from patrol duty and her firearms removed while shesuffered depression after learning that her mother was diagnosed with cancer. She further allegesthat the record shows a lack of any indication that either the Medical Board or respondent Boardof Trustees considered the fact of her service without incident for the eight years prior toSeptember 2001.
Petitioner's ADR application was carefully considered on three separate occasions by theMedical Board and respondent. In each instance, accidental disability retirement benefits weredenied, although the third determination ended in a tie vote, which results in an award ofordinary disability benefits.
The trial court properly declined to annul respondent's determination and remand forreconsideration on the issue of the claimed causal connection between petitioner's psychiatricdisability and her alleged line-of-duty injury. Court of Appeals decisions involving thecircumstance of a tie vote by respondent on an ADR application hold that a reviewing court may[*2]only disturb such finding if it determines as a matter of lawthat causation is established, i.e., that the disability was the natural and proximate result of aline-of-duty accident. Respondent's determination must stand if the record contains any credibleevidence of lack of causation (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept.,Art. 1-B Pension Fund, 90 NY2d 139 [1997]).
Upon review of the record considered by respondent, it is clear that causation as alleged bypetitioner was not established as a matter of law. Indeed, for her initial evaluation by the Boardshe provided "very little documentation" because her psychotherapist, who had treated her forfour years, did not submit a report (when questioned about this, her response was "he doesn't dosuch reports"), and no formal report was submitted by her then-current treating psychiatrist.Rather, the record tends to establish, with a great deal of credible evidence by way of the MedicalBoard's interview of petitioner and evaluation of her medical records and employment history inthe New York City Police Department (NYPD), that petitioner's disability was caused by whatthe trial court termed her "long-standing personality disorder." This was found to consist ofoverdependence, paranoia, borderline traits, depression and acting out with rage. This condition,whose existence went back approximately 10 to 15 years before the alleged causal events, isextensively documented in psychiatric test results and evaluations included in the record. TheMedical Board found that after petitioner's initial enrollment and resignation from the PoliceAcademy in 1985, her acute anxiety and "personality traits incompatible with the demands andstresses of the duties of [a] police officer" were the basis for several rejections of her attempts toreenroll. Even when she was eventually reappointed, her psychological fitness was pointedlyquestioned.
Administrative Code of the City of NY § 13-252 and the relevant case law provide thatADR should be granted only where the applicant is physically or mentally incapacitated for dutyas a natural and proximate result of a line-of-duty accident. The applicant has the burden ofproving each element of her claim. The Medical Board is the sole determiner of whether theapplicant has the injury claimed and whether the injury incapacitates the applicant from theperformance of her duties, and its determination on these issues is binding on the Board ofTrustees of the Police Pension Fund. Where the Medical Board concludes that the applicant isdisabled, it must make a recommendation to the Board of Trustees as to whether the disabilitywas "a natural and proximate result of an accidental injury received in such city-service"; theBoard of Trustees must then make its own determination as to the Medical Board'srecommendation on causation (Administrative Code § 13-168 [a]; Matter of Canfora vBoard of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d347 [1983]). The Board of Trustees' determination as to causation may not be disturbed by acourt as lacking rational basis or as arbitrary and capricious if it is based on "substantialevidence," defined in this context as based on some "credible evidence" (Canfora, 60NY2d at 351).
Inasmuch as the Board of Trustees' determination that petitioner's disability was not causedby any accidental line-of-duty injury is rationally based upon substantial evidence, is notarbitrary, capricious, an abuse of discretion or contrary to law, and the record before us does notas a matter of law support petitioner's theory of causation, we are obliged to affirm.
We note that although petitioner asserts both her service on September 12, 2001 and hersubsequent humiliation, harassment and taunting by coworkers were the line-of-duty accidentsthat caused her disability, the record contains statements by her that indicate she felt the latter tobe more significant than the former. For example, before the Medical Board in September 2005she stated, "it was at the scene of the World Trade Center when I was badly humiliated in front ofthe other officers by being handcuffed and from then on I was harassed . . . I wastold that I shouldn't be an officer and that's my flashback. This is the one that bothers me themost. The [*3]officer who put the handcuffs on me ruined mylife, that's why I cannot be a full time police officer." However, this theory of causation does notmeet the definition of "accident" adopted by the Court of Appeals in this context in Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art.II (57 NY2d 1010, 1012 [1982] ["sudden, fortuitous mischance, unexpected, out of theordinary, and injurious in impact" (internal quotation marks and citation omitted)]), and thusdoes not support her claim (see Matterof Baird v Kelly, 25 AD3d 311, 313 [2006], lv denied 7 NY3d 707 [2006]).
We further note that in addition to petitioner's aforementioned initial lack of documentationsubstantiating her claim and her odd explanation for such omission, the record also suggests thatthe documentation she subsequently provided from Dr. Chece (dated August 20, 2005) wasobtained by her attorney, despite her denial of that fact to the Medical Board. It is also interestingthat as of September 8, 2003, the NYPD Psychological Evaluation Section (PES) adjudgedpetitioner fit for full-duty status, recommended the return of her firearms, and closed her case.PES subsequently refused to support her application for psychiatric disability retirement.Concur—Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.