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In Re Michael Baudille v. Raymond Kelly

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 1, 2012

IN RE MICHAEL BAUDILLE,
PETITIONER-APPELLANT,
v.
RAYMOND KELLY, ETC., ET AL.,
RESPONDENTS-RESPONDENTS.

Matter of Matter of Baudille v Kelly

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2012 Mazzarelli, J.P., Acosta, Renwick, Richter, JJ.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 25, 2011, denying the petition brought pursuant to CPLR article 78 seeking to annul the determination of respondents, dated September 8, 2010, which denied petitioner accidental disability retirement benefits, and dismissing the proceeding, unanimously affirmed, without costs.

There was a rational basis for respondents' determination (see generally Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). The record shows that an MRI taken shortly after petitioner's line-of-duty accident found the glenoid labrum and capsular mechanism within normal limits, he resumed full duty after 20 days, and he had no documented treatment or complaints for over seven years, until he sustained the new injury in 2008, which was admittedly not a line-of-duty accident. Petitioner failed to sustain his burden of demonstrating that there was no medical evidence which supported respondent Board of Trustees' rejection of the Medical Board's recommendation (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145 [1997]; Matter of Deleston v Safir, 294 AD2d 207 [2002]; Matter of Calzerano v Board of Trustees of N.Y. City Police Pension Fund, Art.II, 245 AD2d 84 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 1, 2012

CLERK

20120501

© 1992-2012 VersusLaw Inc.



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