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In re Application of Santiago

Supreme Court, New York County

February 27, 2012

In the Matter of the Application of Elmer Santiago, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,
v.
Raymond Kelly, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the New York City Police Pension Fund, Article II, BOARD OF TRUSTEES of the New York City Police Pension Fund, Article II, NEW YORK CITY POLICE DEPARTMENT OF THE CITY OF NEW YORK, Respondents.

For petitioner: Elmer Santiago, self-represented.

For respondents: David R. Priddy, ACC Michael A. Cardozo Corporation Counsel.

Barbara Jaffe, J.

By amended notice of petition dated July 13, 2011, petitioner brings this Article 78 proceeding seeking a judgment of mandamus compelling respondents to: (1) hold a hearing before the Police Pension Fund (PPF) Medical Board on petitioner's health problems for the purpose of determining his eligibility for an accidental disability retirement (ADR) pension pursuant to the World Trade Center presumption, New York City Administrative Code § 13-252.1 (WTC presumption); or (2) permit petitioner to apply for an ADR pension pursuant to the WTC presumption or Administrative Code § 13-206(g); or (3) temporarily reinstate petitioner as an employee with respondent New York City Police Department (NYPD) to satisfy the membership requirement of the WTC presumption; and (4) to hold a name-clearing hearing. Respondents oppose.

I. BACKGROUND

On December 8, 1997, petitioner was appointed to the NYPD and became a member of the PPF. (Pet.; Ans., Exh. 1). From September 11, 2001, when he responded to the World Trade Center collapse, until November 2001, he participated in rescue and recovery operations, working more than 200 hours in total. (Pet.; Ans., Exh. 5).

On September 17, 2001, petitioner filed a line of duty report, complaining of continuous nose bleeds and flu-like symptoms, and in September and November of 2001, he missed work due to these symptoms. (Pet., Exh. 1). In a report prepared on November 3, 2004, petitioner was accused of sexual conduct, and on November 4, he was placed on modified assignment. (Ans., Exhs. 2, 3). On November 8, petitioner voluntarily resigned from the NYPD (Pet.; Ans., Exh. 4), and never sought reinstatement. (Pet.; Ans.).

In 2009, petitioner's symptoms worsened, and he began to experience gastrointestinal and respiratory problems. (Pet.). Shortly thereafter, he was diagnosed with sleep apnea, Barrett's Esophagus, chronic rhinitis, and gastroesophageal reflux disease. (Id., Exhs. 6, 7, 8, 9).

On December 4, 2009, petitioner submitted a "Notice of Participation in The World Trade Center Rescue, Recovery, or Clean-Up Operations." (Ans., Exh. 5). The notice provided, in pertinent part, that it "is for any active, vested or retired member who participated in the World Trade Center [r]escue, [r]ecovery or [c]lean-up operations[, ]... is for notification purposes only[, ] and does not constitute an application for retirement or reclassification...." (Id.). Handwritten notes on the notice, signed by a PPF employee and dated December 16, 2009, reflect that petitioner was informed that the PPF would not accept his notice. (Id.).

By letter dated February 16, 2010 and addressed to the PPF, petitioner stated, inter alia, that "he [had] received word from [the PPF] that [he] did not qualify to participate because [he] has resigned from the [NYPD]...." (Id., Exh. 6). By letter dated February 23, 2010, the PPF informed petitioner that his notice had been placed in his file "for future reference if needed." (Pet., Exh. 10). By letter dated March 5, 2010, petitioner requested that the PPF provide him a written account of the reasons for the rejection of his notice to enable him to file an Article 78 petition. (Ans., Exh. 7).

By letter dated March 11, 2010, PPH informed petitioner that:

the law specifically refers to the fact that in order to file for disability you must be an active or retired member within a New York City or New York State [r]etirement [s]ystem[, and] [a]s you are currently not a member of a New York City or New York State retirement system, by law you are ineligible to file disability benefits under WTC [l]egislation. (Id., Exh. 8).

By letter dated July 22, 2010, petitioner requested that the PPF reinstate him as an active member to enable him to file for an ADR pension under the WTC presumption. (Id., Exh. 9). By separate letter of the same date, petitioner advised PPF that Administrative Code § 13-206 provides grounds for his reinstatement as a PPF member. (Id.).

By letter to petitioner dated August 10, 2010, the PPF explained that section 13-206 is inapplicable to him, that applications for reinstatement to the NYPD must be submitted within a year of resignation, and that "[p]eople who leave City service and are not members of any NYS [p]ublic [r]etirement [s]ystem, for reasons other than death or ...


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