New York Supreme Court Appellate Division, First Department
August 14, 2012
IN RE JOEL DIAZ, PETITIONER-RESPONDENT,
RAYMOND W. KELLY, ETC., ET AL., RESPONDENTS-APPELLANTS.
Matter of Matter of Diaz v Kelly
Decided on August 14, 2012
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.
Gonzalez, P.J., Saxe, Sweeny, Acosta, Renwick, JJ.
Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered January 13, 2011, which granted the petition to annul respondents' determination denying petitioner's request to amend his application for accidental disability retirement (ADR) benefits, and remanded the matter with the direction that petitioner be allowed to amend his application to include a heart-related disability, unanimously affirmed, without costs.
The Board's determination was arbitrary and capricious and an abuse of discretion (see CPLR 7803). At the time respondent Board denied petitioner's application for ADR benefits based on an orthopedic condition, petitioner had suffered a heart attack, and was incapacitated. Although the parties contest whether petitioner specifically notified a member of the Board of this incapacity, there is evidence in the record that petitioner's heart condition predated his retirement, but was not diagnosed until after he retired. Given these circumstances, petitioner's heart condition warranted consideration by the Medical Board (see Matter of Mulheren v Board of Trustees of Police Pension Fund, Art. II, 307 AD2d 129 , lv denied 100 NY2d 515 ).
We have considered respondents' remaining contentions and find them unavailing. The Decision and Order of this Court entered herein on April 19, 2012 is hereby recalled and vacated (see M--2468 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 14, 2012
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