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ROSENTHAL v. BOARD OF TRUSTEES OF THE NEW YORK CIT

March 20, 1998

AARON H. ROSENTHAL, Plaintiff,
v.
BOARD OF TRUSTEES OF THE NEW YORK CITY POLICE PENSION FUND, ARTICLE II, and WILLIAM BRATTON, COMMISSIONER, NEW YORK POLICE DEPARTMENT, CHAIRMAN, Defendants.


John E. Sprizzo, United States District Judge.


The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.:

 Pursuant to 42 U.S.C. § 1983, plaintiff Aaron H. Rosenthal ("Rosenthal") brings the above-captioned action claiming that defendants Board of Trustees of the New York City Police Pension Fund, Article II ("Board of Trustees") and Police Commissioner William Bratton *fn1" (collectively "defendants") deprived him of certain retirement benefits in violation of his constitutional right to due process. Pursuant to Fed. R. Civ. P. 56, defendants move for summary judgment, or in the alternative, for abstention and a stay of the instant action pending resolution of Rosenthal's previously filed Article 78 proceeding in New York state court. Rosenthal cross-moves for summary judgment. The sole legal issue before the Court is whether defendants' procedures for determining retirement benefits satisfy due process. For the reasons set forth below, defendants' motion for summary judgment is granted and Rosenthal's cross-motion for summary judgment is denied.

 BACKGROUND

 On January 31, 1991, while approaching the Manhattan Municipal Building to attend a late-morning meeting, Rosenthal fell and injured himself. See Compl. PP 32-35; Defs.' 3(g) Stmt. P 2. According to the Line of Duty Report filed by Rosenthal shortly after the incident, poor lighting and construction materials obscured the public entrance to the building, causing him to miss a step and fall face down upon the pavement. *fn2" See Defs.' Not. Mot. Exh. 1 (N.Y.P.D. Line of Duty Injury Report filed on February 4, 1991). As an immediate result of the fall, Rosenthal sustained damage to several teeth and his lips, requiring stitches and extensive dental work, see id. Exh. 4 (Letter of Dr. William A. Liebler, M.D., P.C. dated March 15, 1991), and injured his neck, left shoulder, chest and right wrist when his body hit the ground. Id. Exh. 2 (Amendment to N.Y.P.D. Line of Duty Report approved February 6, 1991). These injuries were deemed to have been suffered "in the line of duty." See Defs.' Not. Mot. Exh. 1. Rosenthal now suffers from disabling advanced degenerative osteoarthritis, degenerative disc disease, and post-traumatic cervical syndrome, see Defs.'s Not. Mot. Exh. 11 at 1 (Medical Board Police Pension Fund Article II Report dated January 5, 1994), the aggravation of which Rosenthal attributes to the fall. See Compl. PP 44, 47.

 On February 4, 1991, Rosenthal returned to full duty employment status. See Defs.' Not. Mot. Exh. 3 (N.Y.P.D. Personnel Update for Duty Availability). However, Rosenthal continued to receive medical treatment and undergo physical therapy for about two years thereafter. See Plaintiff's Notice of Cross Motion for Summary Judgment dated March 15, 1995 ("Pl.'s Not. Mot."), Exh. D (Letter to Dr. William A. Liebler, from Park Ave. Radiologists dated March 26, 1993); see also Compl. P 39. On June 8, 1993, Rosenthal filed an application for Accidental Disability Retirement ("ADR") benefits. *fn3" See P 40.

 Procedure for Obtaining Disability Benefits

 Pursuant to the terms of the Pension Fund, members who become disabled are eligible to receive one of two types of disability benefits. A member is entitled to receive Ordinary Disability Benefits ("ODR") upon being found permanently disabled by the Medical Board of the Pension Fund ("Medical Board"). See N.Y.C. Admin. Code § 13-251. However, if it is further established that a member's permanent disability is a "natural and proximate result of an accidental injury" received in the line of duty and was not a result of the member's "willful negligence," the member is eligible to receive ADR benefits, which are generally more lucrative than ODR benefits. See N.Y.C. Admin. Code § 13-252; see also Defs.' Not. Mot. Exh. 8 at 1 (Medical Board Police Pension Fund Article II Report dated August 4, 1993).

  A member is first examined by the Medical Board, *fn4" whose function is to determine whether or not the officer is disabled with respect to performing the duties of his job. A member's application for benefits is then reviewed by the Board of Trustees. *fn5" Although the Medical Board's finding of disability is binding upon the Board of Trustees pursuant to state law, see Defendants' Memorandum of Law in Support of Summary Judgment dated January 23, 1995 ("Defs.' Mem.") at 6, it is the function of the Board of Trustees to determine whether or not the member meets the legal requirements for ADR benefits. See id. If not, a member generally receives ODR benefits by default. See Defs.' Not. Mot. Exh. 14 at 6 [unnumbered] (Police Pension Fund Articles 1 & 2 Executive Session dated April 13, 1994).

 A member has the right to access his complete medical records maintained by the N.Y.P.D. prior to his examination by the Medical Board, as well as access all records that may be reviewed by the Medical Board in reaching its decision. See Defs.' Mem. at 6. Furthermore, a member has the right to provide favorable medical records, doctors' reports and other documents to the Medical Board for its consideration. See id. Although a member does not have the right to have counsel personally appear before the Medical Board and argue his case, nor does he have the right to have his doctors orally testify before the Medical Board upon his behalf, a member and his attorney are entitled to submit any written arguments to the Medical Board. See id. at 7. The Medical Board issues a written report explaining its findings and reasons for rejecting medical opinions or evidence, and renders an opinion on whether the disability is the "natural and proximate result of an accident" in the line of duty. Id.

 After the Medical Board issues its report, the member and his attorney may submit written comments or arguments directly to the Board of Trustees regarding the correctness of the report. See Defs.' Mem. at 7. Neither a member nor his attorney has the right to personally appear before the Board of Trustees. See id. Instead, those members of the Board of Trustees representing police labor unions act on behalf of the member and present his case to the Board. Id. The Board of Trustees then reviews the supporting evidence and procedural correctness of the Medical Board's opinion. Id.

 Pursuant to state law, the Board of Trustees' must determine whether the incident that caused the disability meets the legal definition of an "accident" under New York law. See Defs.' Mem. at 8. In reaching this decision, the Board of Trustees may consult a memorandum prepared by the New York City Office of Corporation Counsel containing legal definitions of an "accident" in relation to pension benefits as defined by the New York Court of Appeals. Id.; see also Defs.' Not. Mot. Exh. 7 at 1 (Memorandum from New York City Office of Corporation Counsel to Board of Trustees dated February 10, 1994) (hereinafter the "Corp. Counsel Memo"). The Corp. Counsel Memo also contains brief synopses of New York Court of Appeals, New York Supreme Court Appellate Division and New York Supreme Court cases in which either a finding of accident or non-accident was rendered or sustained. See Defs.' Not. Mot. Exh. 7 at 2-9. A member or his counsel has the right to submit written legal and/or factual arguments to the Board of Trustees regarding the "accident" issue. See Defs.' Mem. at 8.

 The Board of Trustees may remand an application back to the Medical Board if it finds procedural irregularities, or if the opinion of the Medical Board is unsupported by competent evidence, or if new evidence merits review and reconsideration by the Medical Board. See Defs.' Mem. at 7-8. Each member is granted two remands as of right, and additional remands are available upon agreement of the Board of Trustees. See id. at 8. All deliberations by the Board of Trustees' on pension benefit applications are transcribed and verbatim minutes are made available to each member and/or his attorney. Id. Once the Board of Trustees renders its final decision, a member has the right to seek judicial review through an Article 78 proceeding brought in New York state court. *fn6" See id. at 8; see also N.Y.C.P.L.R. ("CPLR") 7803, 7804 (McKinney 1998). The state court may set aside the Board of Trustees' determination only "if the ...


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