McCarthy v. Board of Trustees of the New York City Police Pension Fund , 760 N.Y.S.2d 326 ( 2003 )

—Order and judgment, Supreme Court, New York County (Charles Ramos, J.), entered April 12, 2002, granting petitioner police officer’s application to annul respondents’ denial of his application for an accident disability retirement pension, awarding petitioner an accident disability pension and directing respondents to recalculate petitioner’s pension, and bringing up for review an order, same court and Justice, entered December 10, 2002, which, upon reargument, adhered to the order and judgment of April 12, 2002, unanimously modified, on the law, to vacate the award of an accident disability pension and the direction to recalculate petitioner’s pension benefits, the matter remanded to respondents for reconsideration of petitioner’s application, and otherwise affirmed, without costs. Appeal from the order entered December 10, 2002, unanimously dismissed, without costs.

The motion court correctly held that the undisputed evidence of stress-related heart disease accompanying petitioner’s admittedly disabling atrial fibrillation, including hypertension, left ventricular hypertrophy and dyspnea, raised a presumption that the disability was job-related which respondents failed to rebut (see Matter ofLunt v Kelly, 227 AD2d 200 [1996], lv denied 90 NY2d 803 [1997]). However, the motion court should have remanded the matter to respondents for further consideration (see Matter of Duester v McGuire, 81 AD2d 543 [1981]), and we modify accordingly. Concur — Buckley, P.J., Mazzarelli, Ellerin, Williams and Marlow, JJ.