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In re McAuley

Supreme Court of New York, First Department

February 14, 2013

In re Solvieg McAuley, Petitioner-Appellant,
v.
Raymond Kelly, etc., et al., Respondents-Respondents.

Jeffrey L. Goldberg, P.C., Lake Success (Jeffrey L. Goldberg of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Inga Van Eysden of counsel), for respondents.

Mazzarelli, J.P., Andrias, Acosta, Moskowitz, Abdus-Salaam, JJ.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 4, 2010, denying the petition, inter alia, to annul respondents' determination, which denied petitioner's application for accident disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted to the extent of annulling the determination of the Board of Trustees of the New York City Police Department Pension Fund, Article II, and the matter remanded to the Board of Trustees for further proceedings.

Petitioner, a police officer (now retired), responded to the World Trade Center (WTC) to provide assistance following the September 11, 2001 attacks. She was assigned to rescue, recovery and clean up operations in the vicinity of the WTC and worked approximately 75 hours over five days between September 11 and 27, 2001. A triage form filled out on September 15, 2001 showed that petitioner was coughing and complaining of rib pain.

In December 2001, petitioner began coughing up bloody sputum. On February 11, 2002, she complained of difficulty breathing, chest pain, a cough, and congestion as a result of exposure to debris, smoke and or particulate matter in the air at the WTC, and the Police Department (NYPD) approved line of duty injury status for her. Petitioner was admitted to the hospital, where testing revealed a 3.5-centimeter mass in the basal segment of her right lung, obstructing the right lower-lobe bronchus. On March 2, 2002, petitioner underwent a thoracotomy to remove the carcinoid tumor.

On June 22, 2005, petitioner retired from the NYPD. Although she was approved for the Police Commissioner's application for ordinary disability retirement (ODR), the Board of Trustees denied her application for accident disability retirement (ADR) by virtue of a tie vote based on reports of the Medical Board finding that her respiratory disability was caused by the surgery performed to remove the tumor and that the tumor was not the result of her service at the WTC site. [1]

Ordinarily, a claimant filing for ADR benefits has the burden of proving causation in an administrative proceeding. However, Administrative Code of City of NY § 13-252.1(1)(a)

creates a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the WTC, stating:

"Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence."

To qualify for the presumption, a claimant must have participated in operations at one of the enumerated locations for "any period of time within the forty-eight hours after the first airplane hit the towers" or "a total of forty hours accumulated any time between September eleventh, two thousand one and September twelfth, two thousand two" (Retirement and Social Security Law § 2[36][g][i], [ii]). Petitioner fulfills this requirement. A claimant must also suffer from a statutorily defined qualifying condition, including "new onset diseases resulting from exposure as such diseases occur in the future including cancer" (Retirement and Social Security Law § 2[36] [c][v]). The issue is whether petitioner fulfills this requirement.

Although the WTC presumption is not a per se rule mandating enhanced accidental disability retirement benefits for first responders in all cases, the Pension Fund bears the initial burden of coming forward with affirmative credible evidence to disprove causation (see Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, __ N.Y.3d __, 2012 NY Slip Op 08566, *6 [Dec. 13, 2012]). Credible evidence "proceeds from a credible source and reasonably tends to support the proposition for which it is offered" and "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Meyer v Board of Trustee of N.Y. City Fire Dept., Art 1-B Pension Fund, 90 N.Y.2d 139, 147 [1997]). The petitioner "carrie[s] no burden to offer any evidence of causation, " and the Board may not "deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure" or "rely on petitioner's deficiencies to fill its own gap in proof" (Bitchatchi, 2012 NY Slip Op 08566 at *8, 6, 8).

In Bitchatchi, the Court of Appeals affirmed this Court's determinations in Matter of Macri v Kelly (92 A.D.3d 53 [1st Dept 2011]) and Bitchatchi (86 A.D.3d 427 [1st Dept 2011]) affirming Supreme Court decisions finding that no credible evidence rebutted the presumption that the petitioner's qualifying medical conditions were caused by work at the WTC. The Court reversed our determination in Matter of Maldonado v Kelly (86 A.D.3d 516 [1st Dept 2011]) affirming a finding of no causal relationship between WTC work and cancer based on the short amount of time between September 2001 and the discovery of the petitioner's tumor in November 2001. The Court of Appeals explained:

"Under the statutory burden of proof, we believe the Board of Trustees did not satisfactorily rebut the presumption with credible evidence. Petitioner's cancerous tumor grew from the size of a walnut to a softball between September 2001 and November 2001. The Board and the courts below focused on the equivocal nature of the evidence submitted by petitioner in his attempt to demonstrate that the cancer was aggravated by his WTC exposure. In particular, they rejected the opinion of Dr. Sung provided in two letters as speculative and conjectural. But in light of the presumption, petitioner carried no burden to offer any ...

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