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In re Application of D'Alessandro

Supreme Court, Kings County

February 21, 2018

In the Matter of the Application of Nicholas L. D'Alessandro, Petitioner
v.
Daniel A. Nigro, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article I-B Pension Fund and THE BOARD OF TRUSTEES of the New York City Fire Department, Article I-B Pension Fund, Respondents.

          Attorney for Petitioner Jeffrey L. Goldberg, P.C.

          Attorney for Respondents Zachary W. Carter Corporation Counsel of the City of New York Of Counsel: Mary O'Sullivan

          FRANCOIS A. RIVERA, J.

         Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and petition of Nicholas L. D'Alessandro (hereinafter D'Alessandro or petitioner), filed on May 11, 2017, under motion sequence number one, for an order pursuant to CPLR Article 78: (a) annulling the action of Daniel A. Nigro, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article I-B Pension Fund and the Board of Trustees of the New York City Fire Department, Article I-B Pension Fund (hereinafter the City Respondents) denying petitioner a line of duty accident disability retirement (hereinafter ADR); (b) directing the City Respondents to grant petitioner's application for ADR pursuant to the City of New York Administrative Code § 13-353, or, in the alternative; (c) directing the City Respondents by way of remand to review his case based on the law and facts set forth in the verified petition; (d) directing the City Respondents herein to serve and file certain documents pursuant to CPLR 2307.

         Notice of petition

         Verified Petition

         Exhibits A-S

         Verified Answer

         Exhibits 1-26

         City Respondent's memorandum of law in opposition to the petition

         Petitioner's reply memorandum of law

         BACKGROUND

         On May 11, 2017, D'Alessandro commenced this Article 78 proceeding by filing a notice of petition and verified petition (hereinafter the commencement papers) with the Kings County Clerk's office. The verified petition contains twenty eight allegations of fact and nineteen annexed exhibits labeled A through S. By verified answer dated October 5, 2017, the City Respondent's joined issue. The City Respondent's verified answer contains ninety allegations of fact, two affirmative defenses and twenty six annexed exhibits labeled 1 through 26.

         The verified petition seeks, among other things, to vacate and reverse a decision by the City Respondents to deny petitioner's application for ADR benefits. The following allegation s of fact are alleged in the verified petition. The respondent Daniel A. Nigro is at all times the Fire Commissioner of the New York City Fire Department and the Chairman of the Board of Trustees of its Article I-B ...


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