| Matter of Walsh v Scopetta |
| 2010 NY Slip Op 04602 [73 AD3d 1192] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Robert Walsh, Appellant, v NicholasScopetta, as Fire Commissioner of the City of New York and as Chairman of the Board ofTrustees of the New York Fire Department, Article 1-B Pension Fund, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, IlyseSisolak, and Elizabeth S. Natrella of counsel), for respondents.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus, toreview a determination of the New York City Fire Department Article 1-B Pension Fund, datedApril 21, 2008, denying the petitioner/plaintiff's application for accident disability retirementbenefits pursuant to Administrative Code of the City of New York § 13-353 and to compelthe New York City Fire Department Article 1-B Pension Fund to award the petitioner/plaintiffaccident disability retirement, and action for, among other things, declaratory relief, thepetitioner/plaintiff appeals, as limited by his brief, from so much of a judgment of the SupremeCourt, Kings County (Balter, J.), dated February 25, 2009, as denied those branches of thepetition which were to annul the determination of the New York City Fire Department Article1-B Pension Fund dated April 21, 2008, denying his application for accident disability retirementbenefits based on injuries sustained by him as a result of an assault against him which occurredon December 31, 2003, and to compel the New York City Fire Department Article 1-B PensionFund to grant his application for accident disability retirement benefits, and dismissed theproceeding and the action.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
CPLR article 78 relief in the form of mandamus to compel may be granted only where apetitioner establishes a clear legal right to the relief requested (see Matter of Council of Cityof N.Y. v Bloomberg, 6 NY3d 380, 388 [2006]). The New York City Fire DepartmentArticle 1-B Pension Fund is administered by a Board of Trustees pursuant to title 13 of theAdministrative Code of the City of New York. A firefighter is entitled to accident disabilityretirement when he or she "is physically or mentally incapacitated for the performance ofcity-service, as a natural and proximate result of an accidental injury received in suchcity-service" (Administrative Code of City of New York § 13-353; see Matter ofMeyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139,144 [1997]; Matter of Lichtenstein v Board of Trustees of Police Pension Fund of PoliceDept. of City of N.Y., Art. II, 57 NY2d 1010, 1011 [1982]). A reviewing court may not setaside the Board of Trustees' denial of accidental disability retirement resulting from a tie vote"unless it can be determined as a matter of law on the record that the disability was the naturaland proximate result of a service-related accident" (Matter of Meyer v Board of Trustees ofN.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d at 145 [citation and internalquotation marks omitted]).[*2]
An "accident" for public pension purposes is a " '"sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ' "(Matter of Kehoe v City of New York, 81 NY2d 815, 817 [1993], quoting Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art11, 57 NY2d at 1012). "It is the precipitating cause of the injury, rather than the jobassignment at the time, that determines entitlement to accidental disability benefits" (Matterof Hallihan v Ward, 169 AD2d 542, 542 [1991]; see Matter of McCambridge vMcGuire, 62 NY2d 563, 567 [1984]).
The parties do not dispute that the injuries sustained by the petitioner/plaintiff, RobertWalsh, resulted solely from the intentional act of a fellow firefighter, who intentionally struckWalsh on the head with a chair after the two exchanged heated words. As the fellow firefighter'sconduct in striking Walsh did not occur by chance, the determination by the Board of Trusteesthat the precipitating cause of Walsh's injuries was not fortuitous was rationally based and notarbitrary or capricious (see Matter of D'Onofrio v New York City Employees' RetirementSys., 270 AD2d 49 [2000]). Thus, the Supreme Court properly determined that it could notfind as a matter of law that Walsh's disability was the natural and proximate result of aservice-related accident (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept.,Art. 1-B Pension Fund, 90 NY2d at 145). Accordingly, Walsh failed to establish that he hada clear legal right to an order compelling the New York City Fire Department Article 1-BPension Fund to award him accident disability retirement based on the neurological injuries hesustained as a result of the fellow firefighter's conduct (see Matter of Council of City of N.Y.v Bloomberg, 6 NY3d at 388).
Walsh's remaining contentions are without merit. Angiolillo, J.P., Balkin, Leventhal andRoman, JJ., concur.