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In re Stavropoulos

Supreme Court of New York, First Department

March 9, 2017

In re Dennis Stavropoulos, Petitioner-Appellant,
William J. Bratton, etc., et al., Respondents-Respondents.

          Law Office of Jeffrey L. Goldberg, Port Washington (Eileen J. Goggin of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.

          Friedman, J.P., Renwick, Richter, Moskowitz, Kapnick, JJ.

         Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.), entered September 15, 2014, denying the petition seeking to annul the determination of respondents, dated November 19, 2013, which denied petitioner's request for an award of a World Trade Center accident disability retirement pension, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

         Petitioner, as an officer of the New York City Police Department, responded to the World Trade Center (WTC) on September 11, 2001, and worked for over 100 hours at the site. In May 2011, petitioner filed an application for enhanced accident disability retirement (ADR) benefits. In his application, petitioner contended that he was disabled by pulmonary hypertension, which had been diagnosed in 2009, and that he was entitled to a statutory presumption that this condition had been caused by his exposure to contaminants at the WTC site under the Administrative Code of City of NY § 13-252.1(a) and Retirement and Social Security Law § 2(36). Respondent Board of Trustees of the Police Pension Fund, Article II (the Board of Trustees), following the recommendation of the Medical Board, ultimately denied petitioner's application for ADR benefits, while approving him for ordinary disability retirement, finding that his disability of pulmonary hypertension was not subject to a statutory presumption of WTC-related causation and had not otherwise been shown to have been caused by exposure to contaminants at the WTC site. In the order appealed from, Supreme Court rejected petitioner's article 78 challenge to the determination of the Board of Trustees. For the reasons discussed below, we affirm.

         The record establishes that, long before the events of September 11, 2001, petitioner suffered from a number of medical conditions that are risk factors for the development of pulmonary hypertension. Like his father and sister, he was born with the blood disorder thalassemia trait, which affects the red blood cells' ability to circulate oxygen. In 1984, as a result of injuries incurred in a car accident, petitioner underwent an operation to remove his spleen. In 1990, he was diagnosed with iron overload.

         In 2009, after being hospitalized for symptoms of exertional shortness of breath and chest pain, petitioner was diagnosed with severe pulmonary arterial hypertension of unclear etiology. At the same time, x-rays and CT-scans of petitioner's chest revealed that his lungs were "clear." Moreover, pulmonary function tests were normal and clinical lung examinations were within normal limits.

         Hypertension, or high blood pressure, can occur in either of the two major loops of the circulatory system: in the set of blood vessels distributing blood from the right side of the heart to the lungs, in which case it is called pulmonary hypertension, or in the set of blood vessels distributing blood from the left side of the heart to the rest of the body, in which case it is called systemic hypertension. Pulmonary hypertension is the less frequent of the two varieties of hypertension. Pulmonary hypertension may be diagnosed as idiopathic pulmonary hypertension if the cause is unknown, or secondary pulmonary hypertension if caused by an identified medical disorder.

         Applying for ADR involves a two step process. Initially, the pension fund's Medical Board conducts a physical examination, interviews the applicant, and reviews the submitted evidence, before submitting a recommendation to the Board of Trustees. In the second step, the Board of Trustees votes to either grant or deny ADR benefits. Ordinarily, an applicant for ADR has the burden to show an injury suffered in the line of duty caused the disabling condition. However, a police officer who worked the requisite hours at the WTC site, and is diagnosed with one of several statutorily enumerated conditions, is entitled to a statutory presumption that contaminants at the WTC site caused the condition. In this regard, § 13-252.1(a) of the Administrative Code provides in pertinent part:

         "[I]f any condition or impairment of health [of a service member] is caused by a qualifying World Trade Center condition as defined in [Retirement and Social Security Law § 2], 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."

         Retirement and Social Security Law § 2(36)(a) defines a "qualifying World Trade Center condition" as "a qualifying condition or impairment of health resulting in disability to a [service] member who participated in World Trade Center rescue, recovery or cleanup operations for a qualifying period, as those terms are defined below, " subject to certain conditions that are not at issue in this case. Retirement and Social Security Law § 2(36)(c) provides that the physical conditions within this category include, in pertinent part:

"(ii) diseases of the lower respiratory tract, including but not limited to trachea-bronchitis, bronchitis, chronic obstructive pulmonary disease, asthma, reactive airway dysfunction syndrome, and different types of pneumonitis, such as hypersensitivity, granulomatous, or eosinophilic; [and]...
"(v) new onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease."

         Petitioner's application was considered by the Medical Board on three separate occasions. On July 15, 2011, petitioner appeared before the Medical Board for the first time. In support of his application, petitioner submitted his medical records and letters from three physicians, more fully discussed hereinafter, suggesting, without evidence, that there might be some connection between petitioner's pulmonary hypertension and his WTC exposure. Petitioner's medical records noted his various ailments including thalassemia, benign lung nodules, and pulmonary hypertension. Neither petitioner, nor any of his ...

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