| Matter of Lloyd v Kelly |
| 2010 NY Slip Op 04036 [73 AD3d 490] |
| May 11, 2010 |
| Appellate Division, First Department |
| In the Matter of Cyril C. Lloyd, Appellant, v RaymondKelly, as the Police Commissioner of the City of New York, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forrespondents.
Order, Supreme Court, New York County (James A. Yates, J.), entered February 4, 2009,which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78seeking, inter alia, to annul respondents' determination denying accident disability retirementbenefits (ADR), unanimously affirmed, without costs.
The denial of the application for ADR was neither arbitrary and capricious nor an abuse ofdiscretion. The Medical Board's finding that the alleged manipulation of petitioner by achiropractor during a medical fraud investigation was not the proximate cause of his backinjuries, was supported by credible evidence (see Matter of Borenstein v New York CityEmployees' Retirement Sys., 88 NY2d 756, 760-761 [1996]), including petitioner's ownmedical records, which showed that he had degenerative disc conditions in his back that datedprior to the chiropractic incident at issue. Furthermore, the argument that the incident with thechiropractor aggravated the preexisting condition was not supported by the evidence; petitioner'srecords demonstrated that he neither sought leave nor treatment until approximately threemonths after the incident (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept.,Art. 1-B Pension Fund, 90 NY2d 139 [1997]). Concur—Saxe, J.P., Friedman,Nardelli, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op30233(U).]