Matter of Ryan v. Kelly , 154 A.D.3d 629 ( 2017 )

Matter of Ryan v Kelly (2017 NY Slip Op 07565)

Matter of Ryan v Kelly

2017 NY Slip Op 07565

Decided on October 31, 2017

Appellate Division, First Department

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.

Decided on October 31, 2017
Richter, J.P., Webber, Kern, Moulton, JJ.

4831 101515/13

[*1]In re Anita Ryan, Petitioner-Appellant,

v

Raymond Kelly, etc., et al., Respondents-Respondents.

Ungaro & Cifuni, LLP, New York (Nicholas Cifuni of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered January 6, 2016, denying the petition to annul a determination of respondent Board of Trustees of the Police Pension Fund, Article II, dated August 17, 2013, which denied petitioner's application for accidental disability retirement, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner failed to submit evidence showing that her disabling condition of systemic sclerosis, which is not recognized as a qualifying physical condition under the World Trade Center (WTC) law, was a "new onset disease" (see Retirement and Social Security Law § 2[36][c][v]). Accordingly, petitioner has failed to show entitlement to the statutory presumption that her condition was caused by her exposure to toxins during her rescue and recovery work at the World Trade Center site (see Matter of Stavropoulos v Bratton, 148 AD3d 449, 450-451, 454 [1st Dept 2017]).

Credible record evidence supported the Board of Trustees' determination, by a tied vote, that petitioner's condition was not caused by her work at the WTC site (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144-145 [1997]). Indeed, petitioner's physicians all acknowledged that, while a link to environmental risk factors such as silica dust is suspected, the etiology of her condition remains unknown.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 31, 2017

CLERK