The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Petitioner, a New York City police officer, retired in 2004 and was awarded accident disability benefits. In the following years, the police department received information indicating that petitioner was not disabled; that he had made false representations to the Pension Fund; and that he had ingested cocaine, thus becoming ineligible to return to duty.
The City, understandably, claims that it should not have to continue paying him a pension.
Despite the common-sense appeal of the City's position, we affirm the Appellate Division's order annulling the termination of petitioner's pension benefits. The Appellate Division correctly held that the benefits can be terminated only by the trustees of the Police Pension Fund, who have not taken the necessary action. However, while we recognize the technical merit of petitioner's argument, we express our distress at the way the system has malfunctioned in this case.
In December 2003, petitioner, after 11 years on the police force, applied for accident disability retirement. He claimed that as a result of a line-of-duty accident (a fall while walking on ice and snow) he suffered from constant pain in his right shoulder and neck, loss of range of motion in his neck and shoulder, and pain radiating into his arm, which prevented him from performing police duty. His application was granted, and he was awarded accident disability retirement on May 12, 2004 (see New York City Administrative Code § 13-252).
The following month, the police department received information that petitioner was working, and began an investigation that led a department official to report that petitioner was "performing construction work on a daily basis." The investigation included observations of the work, some of them videotaped. An investigator's reports say that petitioner was seen picking up siding, passing it to others, lifting it over his head and nailing materials above his head with both arms extended for some time -- all tasks performed without apparent difficulty.
The police department informed the Police Pension Fund in November 2004 that petitioner "may no longer be disabled," and the Pension Fund agreed in December 2004 to "re-examine" petitioner. The reexamination included an interview by the Pension Fund's Medical Board at which petitioner, according to the board's memorandum of the interview, said that he "cannot lift any heavy objects . . . . cannot work overhead . . . has no outside work and his major occupation is baby-sitting his two children."
Despite the difference between petitioner's assertions and the videotapes, neither the police department nor the Pension Fund suggested -- and neither, so far as the record shows, has suggested to date -- that petitioner was guilty of fraud or misrepresentation, or that he should refund any of the pension money he had received. However, the Pension Fund's Medical Board did conclude in May 2005 that petitioner's condition "has improved dramatically," and recommended disapproval of his retirement application. The Pension Fund's trustees took no action on this recommendation for approximately two years, other than to remand the matter twice to the Medical Board, which twice reaffirmed its previous recommendation, noting in its second reaffirmance on September 19, 2006 that petitioner "seems to have made a remarkable recovery from his injury."
Finally, on April 11, 2007, the Pension Fund board of trustees voted, over the dissent of several trustees, to invoke New York City Administrative Code § 13-254, entitled "Safeguards on disability retirement," under which a disability pensioner found to be able to work may be returned to city service. The "safeguards" procedure soon hit a snag, however. Petitioner was placed on a list of candidates eligible to become police officers, but on July 6, 2007 he was informed that he was "medically disqualified" for that position "due to the presence of an unauthorized substance, cocaine, in your hair sample."
On July 12, the New York City Law Department advised the Pension Fund that "notwithstanding" petitioner's disqualification, "he is no longer deemed to be disabled, and he is no longer entitled to a disability pension." There is no indication in the record that the Pension Fund's board of trustees ever considered or acted on this advice, but on July 18, 2007 the Pension Fund's Director of Pension Payroll advised petitioner "that your pension benefit will be suspended beginning with the July 2007 payroll."
Petitioner brought this article 78 proceeding, seeking to annul the determination to suspend his pension benefits. Supreme Court denied the application. The Appellate Division reversed, annulling the suspension of benefits, and granted leave to appeal to this Court. We now reluctantly affirm.
The "safeguards" statute, New York City Administrative Code § 13-254, under which the Pension Fund tried to bring petitioner ...