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In Re Kenneth Paccio v. Raymond Kelly

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


July 3, 2012

IN RE KENNETH PACCIO,
PETITIONER-APPELLANT,
v.
RAYMOND KELLY, AS POLICE COMMISSIONER OF THE CITY OF NEW YORK, ETC., ET AL.,
RESPONDENTS-RESPONDENTS.

Matter of Matter of Paccio 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 July 3, 2012

Tom, J.P., Andrias, Saxe, Moskowitz, Acosta, JJ.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered May 5, 2010, denying the petition to annul respondents' determination, dated July 8, 2009, which denied petitioner's application for accident disability retirement pension benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The Board of Trustees denied petitioner's application for accident disability retirement (ADR) benefits, as a consequence of a tie vote upon the issue of whether petitioner's disability was caused by a service-related accident. Since there was some credible evidence to support the Medical Board's conclusion that petitioner's disability was not caused by a service-related accident, the Board of Trustees was entitled to rely on the Medical Board's recommendation as to causation, and its determination denying petitioner ADR benefits may not be disturbed (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144-145 [1997]; Matter of Beckles v Kerik, 1 AD3d 215 [2003], lv denied 1 NY3d 507 [2004]).

Contrary to petitioner's contention that the Board of Trustees failed to address explicitly all the medical evidence and to explain fully its reasons for disagreeing with petitioner's experts, it is clear from the record that the Board considered the relevant medical records, and the proceedings disclose the reason for its denial of ADR benefits sufficiently to permit judicial review (see Matter of Galli v Bratton, 238 AD2d 252 [1997]; Matter of Curran v McGuire, 87 AD2d 223, 226 [1982]).

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

ENTERED: JULY 3, 2012

DEPUTY CLERK

20120703

© 1992-2012 VersusLaw Inc.



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