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KABELKA v. CITY OF NEW YORK

January 8, 1973

Franklin H. KABELKA, Plaintiff,
v.
The CITY OF NEW YORK et al., Defendants


Ward, District Judge.


The opinion of the court was delivered by: WARD

WARD, District Judge.

PRELIMINARY STATEMENT

 This action alleging violations of plaintiff's constitutional rights under the Fourteenth Amendment and his rights under the Civil Rights Act, 42 U.S.C. Sections 1981 and 1983, was tried to the Court without a jury. Plaintiff, who was appointed a New York City fireman in 1961, was retired from the Fire Department in 1967 for a non-service incurred disability. He contends that had he had counsel present and adequate notice of the New York City Fire Department Medical Board hearing which preceded his retirement, he would have been able to show that his disability was incurred in the course of his service with the Fire Department, thereby entitling him to a larger pension.

 Plaintiff called two witnesses. The first was a Lieutenant of the New York City Fire Department who testified regarding Fire Department procedures in 1967. The second was the plaintiff who testified concerning his disability and the proceedings which led to his retirement. Defendants rested their case without presenting any witnesses.

 The Court's findings of fact and conclusions of law follow:

 FINDINGS OF FACT

 1. Plaintiff was appointed as a fireman in the New York City Fire Department on February 11, 1961.

 2. By letter dated April 10, 1967 the Fire Commissioner directed plaintiff to report on April 17, 1967 for a medical examination as provided by Title B, Article 1-B of Chapter 19 of the Administrative Code of the City of New York.

 3. The notice of April 10, 1967 directed plaintiff to bring with him any medical or other evidence in his possession which would have any bearing on the medical determination of his case.

 4. The notice also advised plaintiff that there was no provision in the Article 1-B Pension System for an administrative appeal.

 5. Plaintiff could have requested a postponement of the medical examination but did not do so.

 6. The medical examination was held on April 17, 1967 and was attended by the plaintiff and by Dr. Morris Enklewitz, Dr. I. Pirschein and Dr. Kazuo Yanagisawa, who were the three members of the Article 1-B Medical Board at that time. All three of these men were physicians of long standing and experience. A stenographer and the Operational Secretary to the Medical Board also attended the examination.

 7. The three members of the Medical Board examined plaintiff and found him to be physically unfit for the performance of fire duty due to a nasal obstruction and repeated nose bleeds.

 8. Plaintiff contends that his statements to the Medical Board to the effect that his condition was service incurred were ignored. There is no evidence that he presented any other proof to the Medical Board in support of ...


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