| Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept.Pension Fund, Art. II |
| 2011 NY Slip Op 05860 [86 AD3d 427] |
| July 7, 2011 |
| Appellate Division, First Department |
| In the Matter of Karen Bitchatchi, Respondent, v Board ofTrustees of the New York City Police Department Pension Fund, Article II,Appellant. |
—[*1] Rosemary Carroll, Clermont, for respondent.
Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.),entered April 16, 2010, which granted the petition brought pursuant to CPLR article 78 seeking,inter alia, to annul the determination of respondent denying petitioner accident disabilityretirement (ADR) benefits and found that petitioner was entitled to the greater benefit as a matterof law and remanded the matter to respondent to grant the petitioner the ADR pension and torecompute petitioner's retirement allowance, unanimously affirmed, without costs.
Supreme Court properly determined that respondent failed to rebut with credible evidencethe presumption of Administrative Code of the City of New York § 13-252.1, thatpetitioner's cancer was caused by her service at the World Trade Center site in the daysimmediately following September 11, 2001 (see generally Matter of Meyer v Board ofTrustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997];compare Matter of Jefferson vKelly, 51 AD3d 536 [2008]). There is no credible evidence to support the MedicalBoard's assertion that the size of tumor meant it began growing before September 11, 2001, andthus could not have been the result of or exacerbated by exposure. Nor is there credible evidenceto support the Medical Board's conclusion that petitioner's cancer was caused by her episode ofulcerative colitis and the corrective surgery, which occurred nearly 20 years prior to the onset ofthe cancer. Concur—Tom, J.P., Saxe, Acosta and Freedman, JJ. [Prior Case History:2010 NY Slip Op 30700(U).]