Opinion
April 11, 1994
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the judgment is reversed, on the law, with costs, the determination of the Board of Trustees is confirmed, and the proceeding is dismissed on the merits.
It is well settled that when there is a tie vote of the Board of Trustees of the New York City Fire Department in determining whether accident disability retirement is appropriate, the Board of Trustees must retire the applicant on an ordinary disability pension (see, Matter of City of New York v Schoeck, 294 N.Y. 559). The Board's decision can be set aside on judicial review only if the petitioner establishes as a matter of law on the record that the disability was a natural and proximate result of a service-related accident (see, Matter of Flynn v Board of Trustees, 201 A.D.2d 730; see also, Matter of Causarano v Board of Trustees, 178 A.D.2d 474; Matter of Canfora v Board of Trustees, 60 N.Y.2d 347), an issue as to which the petitioner has the burden of proof (see, Matter of Nicolosi v Board of Trustees, 198 A.D.2d 282). It is only when circumstances admit but one inference that the court may decide as a matter of law what inference should be drawn (see, Matter of Radigan v O'Connell, 304 N.Y. 396, 397; see also, Matter of Flynn v Board of Trustees, 201 A.D.2d 730, supra). Moreover, not every line-of-duty injury will result in an accident disability retirement. The injury must be the result of a "`sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'" (Matter of Lichtenstein v Board of Trustees, 57 N.Y.2d 1010, 1012; see also, Matter of McCambridge v McGuire, 62 N.Y.2d 563, 567-568).
Here, there was substantial medical evidence that the petitioner's knee condition was of arthritic and nontraumatic origin (see, Matter of Russo v Board of Trustees, 143 A.D.2d 674, 676). Thus, the petitioner has not met his burden of proving a causal connection, as a matter of law, between his line-of-duty accident and his disabling condition (see, Matter of Scotto v Board of Trustees, 76 A.D.2d 774, 775, affd 54 N.Y.2d 918; see also, Matter of Nicolosi v Board of Trustees, 198 A.D.2d 282, supra).
Therefore, the Supreme Court erred in granting the petitioner an accident disability pension. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.