SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 13, 1968
IN THE MATTER OF MICHAEL M. SIMON, APPELLANT,
LLOYD K. GARRISON ET AL., CONSTITUTING THE BOARD OF EDUCATION RETIREMENT SYSTEM OF THE CITY OF NEW YORK, ET AL., RESPONDENTS
Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.
In our opinion, petitioner's affidavit denying a back injury sustained while in military service or while playing ball raises an issue of fact which should be determined by Special Term at a hearing (CPLR 7804, subd. [h]; Matter of Schwab v. McElligott, 282 N. Y. 182).
In a proceeding pursuant to article 78 of the CPLR inter alia to annul a determination denying petitioner's application for retirement on an accident disability pension, petitioner appeals from a judgment of the Supreme Court, Kings County, dated August 21, 1967, which granted respondents' motion for reargument and thereupon dismissed the petition. Judgment reversed, on the law, with $10 costs and disbursements, and proceedings remitted to the Special Term for (1) a hearing limited to the issue of whether petitioner told respondents' examining physicians that he had previously injured his back either in military service, or while playing ball, or in an automobile accident in 1957 and (2) further proceedings not inconsistent herewith.
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