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ALBENGA v. WARD

May 22, 1986.

Louis P. ALBENGA, Plaintiff,
v.
Benjamin WARD, et al., Defendants.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

 I.

 Plaintiff joined the New York City Police Department on June 5, 1968. Prior to that time he had served in the Marines in Vietnam. While in Vietnam he was wounded, sustaining shrapnel injury to his left upper arm. This wound caused damage to his radial nerve which resulted in a temporary weakness of his left wrist and hand. The wound healed and the weakness disappeared.

 When plaintiff applied to the New York City Police Department he made full disclosure of his Vietnam injury. He was examined and found medically qualified to perform police duties. He was appointed. After serving a one-year probationary period, plaintiff was re-examined, found to be physically fit, and appointed to a permanent position.

 Plaintiff served on the police force with distinction for ten years, during which time he experienced no ill effects and no loss of time from the war wound. It was, in fact, completely quiescent.

 On October 3, 1978, while assisting an epileptic into an ambulance, plaintiff injured his neck and shoulder. He was treated for muscle strain and spasms at Columbia Presbyterian Hospital, advised to wear a cervical collar and released. After three weeks the pain in plaintiff's neck and shoulder subsided but he noted numbness, weakness and pain in his left arm and hand. His condition was diagnosed as cervicular radiculitis with radial nerve involvement.

 Plaintiff remained out on sick leave from October 3, 1978 to December 26, 1978, returning to restricted duty on December 27, 1978. He applied for accident disability retirement on March 15, 1979.

 Pursuant to the Administrative Code of the City of New York § B18-4.0, the police commissioner, on behalf of the board of trustees of the police pension fund, directed the medical board to examine plaintiff to determine his fitness to perform police duty. Following an examination of the plaintiff and review of his medical reports the medical board found plaintiff to be disabled due to radial nerve damage resulting from his Vietnam war injury. The medical board found that the disability was unrelated to the line of duty injury plaintiff sustained on October 3, 1978 and therefore recommended that plaintiff's accident disability retirement application be denied and that plaintiff be retired with an ordinary disability pension.

 The board of trustees of the New York City Police Pension Fund is composed of representatives of the City and representatives of the various line organizations which represent the police officers. The City representatives have a total of six votes on the board, as do the representatives of line organizations.

 The board of trustees considered plaintiff's application on September 25, 1979. The vote on his application for an accident disability pension resulted in a 6-6 tie. The vote on an application by the police commissioner that plaintiff be retired with an ordinary disability pension also resulted in a 6-6 tie. The police commissioner (through a deputy commissioner who was acting as chairman of the board of trustees) then directed that petitioner be retired on an ordinary disability pension.

 An ordinary disability pension is at 50 percent of a pensioner's former salary. An accident disability pension, granted when a person is incapacitated "as a natural and proximate result of . . . city-service," Administrative Code of the City of New York § B18-43.0, is at 75 percent of a pensioner's former salary.

 Plaintiff commenced an Article 78 proceeding on November 28, 1979 seeking review of the board of trustees' denial of his application for an accident disability pension on the grounds that it was irrational, arbitrary and capricious and without any basis in fact or law. Justice Beverly Cohen of the Supreme Court, New York County, Special Term denied his petition for review on August 1, 1980. A divided appellate Division affirmed the Supreme Court, Albenga v. McGuire, 80 A.D.2d 813, 437 N.Y.S.2d 314 (App.Div. 1st Dept.1981). The Court of Appeals affirmed, Albenga v. McGuire, 54 N.Y.2d 923, 445 N.Y.S.2d 151, 429 N.E.2d 830 (1981).

 Plaintiff filed this complaint pursuant to 42 U.S.C. § 1983, arguing that he was deprived of due process by the failure of the board of trustees to follow the procedures mandated by the ...


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