Matter of Modlin v. Kelly , 994 N.Y.S.2d 577 ( 2014 )

Matter of Modlin v Kelly (2014 NY Slip Op 06866)

Matter of Modlin v Kelly

2014 NY Slip Op 06866

Decided on October 9, 2014

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 9, 2014
Gonzalez, P.J., Saxe, Richter, Clark, JJ.

13177 103427/12

[*1] In re Joseph Modlin, Petitioner,

v

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

Jeffrey L. Goldberg, P.C., Port Washington (Jeffrey L. Goldberg of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Keith M. Snow of counsel), for respondent.

Determination of respondent Board of Trustees, dated May 10, 2012, denying petitioner's application for accidental disability retirement benefits, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Eileen A. Rakower, J.], entered February 11, 2013), dismissed, without costs.

This proceeding was improperly transferred to this Court because the determination was not made pursuant to an administrative hearing. However, in the interest of judicial economy, we address the merits of the petition (see e.g. Matter of DeMonico v Kelly, 49 AD3d 265 [1st Dept 2008]).

Respondents overcame the Heart Bill presumption of General Municipal Law § 207-k based on the Medical Board's opinion that petitioner's obstructive hypertrophic cardiomyopathy was a genetic disorder, and not stress-related. The Medical Board reviewed petitioner's medical records, noting that he had no history of severe hypertension, and that the echocardiogram finding of left ventricular outflow tract obstruction as well as the suspicion of a systolic anterior motion of the mitral valve and mitral regurgitation, were consistent with its diagnosis, and were not found in hypertensive left ventricular hypertrophy that resulted from hypertension. Contrary to petitioner's contention, the Medical Board's report on remand was detailed and specific and addressed the conflicting conclusions of petitioner's doctors.

Accordingly, based on the evidence cited by the Medical Board and its medical judgment, it cannot be said as a matter of law that petitioner's disability was the result of job-related stress, [*2]rather than a genetic disorder (see Matter of Goodacre v Kelly, 96 AD3d 625 [1st Dept 2012], lv denied 20 NY3d 860 [2013]; Matter of Higgins v Kelly, 84 AD3d 520 [1st Dept 2011], lv denied 18 NY3d 806 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2014

CLERK