Matter of Knudsen v. Kelly

Full title: IN THE MATTER OF THE APPLICATION OF ROBERT KNUDSEN, Petitioner, For a…

Court: Supreme Court of the State of New York, New York County

Date published: Feb 21, 2008

2008 N.Y. Slip Op. 30638 (N.Y. Sup. Ct. 2008)

Opinion

0113735/2007.

February 21, 2008.

DECISION/ORDER

CAROL R. EDMEAD, Judge.

Upon the foregoing papers, it is ordered that this motion

This application is decided in accordance with the accompanying Memorandum Decision. It is hereby

ORDERED and ADJUDGED that the application of petitioner Robert Knudsen, for a judgment pursuant to Article 78 of the CPLR (1) reviewing and annulling the action of the respondents Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article 11, the Board of Trustees of the Police Pension Fund, Article II, the New York City Police Department, and The City of New York herein denying petitioner a line of duty accident disability retirement allowance pursuant to the Administrative Code § 13-252; and declaring said action to be arbitrary, capricious, unreasonable and unlawful; (2) directing and ordering the respondents to retire petitioner with a line of duty accident disability retirement allowance; and (3) directing that the Board allow petitioner and/or his representatives to present such testimony as is necessary at a hearing held before the Board in order to prove his entitlement to an accident disability retirement is denied in its entirety; and it is further

ORDERED and ADJUDGED that the Petition herein is dismissed; and it is further

ORDERED that counsel for respondents shall serve a copy of this Order with notice of entry within twenty days of entry on counsel for petitioner.

MEMORANDUM DECISION

Petitioner Robert Knudsen ("petitioner"), moves for a judgment pursuant to Article 78 of the CPLR (1) reviewing and annulling the action of the respondents herein, Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II ("Commissioner Kelly"), the Board of Trustees of the Police Pension Fund, Article II (the "Board"), the New York City Police Department (the "NYPD" and/or the "Department"), and The City of New York (the "City") (collectively "respondents"), denying petitioner a line of duty accident disability retirement allowance pursuant to the Administrative Code § 13-252; and declaring said action to be arbitrary, capricious, unreasonable and unlawful; (2) directing and ordering the respondents to retire petitioner with a line of duty accident disability retirement allowance; and (3) directing that the Board allow petitioner and/or his representatives to present such testimony as is necessary at a hearing held before the Board in order to prove his entitlement to an accident disability retirement.

Background

Petitioner was appointed to the uniformed force of the NYPD on January 26, 1982 and served continuously as a member of said NYPD uniformed force until his service retirement. Petitioner, prior to his appointment with the NYPD, passed all physical and mental examinations administered by the NYPD that demonstrated petitioner to be both physically and mentally fit to perform full duties as a police officer. Petitioner's service with the NYPD during his NYPD employment was satisfactory at all times.

On November 23, 1994, petitioner sustained a line of duty ("LOD") injury to his right hand when his police department vehicle was involved in an accident. Surgery ensued. On November 23, 1998, petitioner submitted an application for Accident Disability Retirement ("ADR"), and the Police Commissioner filed an application for Ordinary Disability Retirement ("ODR") on the petitioner's behalf.

In his ADR application, petitioner alleges, inter alia,

I hereby claim that I am disabled and that this disability is a natural and proximate result of an accidental injury sustained in the performance of city service as a police officer.

[Line of Duty] rpm acc[ident] requiring surg[ery] to my right hand. I lost most of strength in my right hand. I can no longer hold or fire my weapon. When I try to shoot I have severe swelling in the hand and a lot of pain radiating thru my hand. . . .

On or about April 13, 1999, the Medical Board reviewed and evaluated petitioner's case.

At that time, the Medical Board found as follows:

Based on the history, physical examination and the available records, it is the opinion of the Medical Board that this officer can perform the full duties of a New York City Police Officer. The Article II Medical Board, therefore, recommends disapproval of the officer's own application for Accident Disability Retirement and the Police Commissioner's application for Ordinary Disability Retirement.

On or about July 20, 1999, the Commanding Officer of the Pension Section notified the Medical Board that the Board of Trustees, at its July 14, 1999 meeting, had requested that petitioner's file be reexamined in light of new evidence. In response to the Board of Trustees' request, on or about August 31, 1999 the Medical Board reevaluated petitioner's case. The Medical Board concluded:

Based on the history, present complaints, past medical history, occupational status, new evidence and the physical examination performed today, it is the unanimous opinion of the Article II Medical Board that this officer can perform the full duties of a New York City police officer. The Article II Medical Board, therefore, reaffirms its previous decision of disapproval of the officer's own application for Accident Disability Retirement and the Police Commissioner's application for Ordinary Disability Retirement.

On or about May 11, 2000, petitioner submitted a second application for ADR. The new evidence consisted of a report from Dr. Francis Lanzone dated March 31, 2000. Once again, the Medical Board opined that petitioner could perform the full duties of a New York City police officer, and, therefore once again recommended disapproval of the applications for ADR and ODR.

On November 8, 2000, the Board of Trustees again considered petitioner's case. At the meeting, the Board of Trustees remanded petitioner's case to the Medical Board so that the Medical Board could "readdress the issue of permanent disability." The Medical Board reaffirmed its previous recommendation to disapprove both the ADR and ODR applications.

On August 28, 2001, the Commanding Officer of the Pensions Section notified the Medical Board that the Board of Trustees, at its August 8, 2001 meeting, had requested a re-evaluation of petitioner's application in light of "new evidence." On March 12, 2002, the Medical Board re-evaluated petitioner's case. After referencing the evidence already present in the case, the Medical Board reviewed the new evidence presented by petitioner. Ultimately, the Medical Board reaffirmed its previous recommendation to disapprove both the ADR and ODR applications.

On June 12, 2002, the Board of Trustees again considered petitioner's case, and at a meeting and then allowed a "final remand" of petitioner's case to the Medical Board. On June 14, 2002, the Commanding Officer of the Pensions Section notified the Medical Board that the Board of Trustees, at its June 12, 2002 meeting, had requested a re-evaluation of petitioner's case in light of "new evidence." The Medical Board reaffirmed its previous recommendation.

On November 8, 2002, the Board of Trustees adopted the Medical Board's recommendation and denied petitioner's applications for ADR and ODR.

On or about February 27, 2003, petitioner filed an Article 78 proceeding to annul respondents' determination denying petitioner's application for ADR and the Police Commissioner's application for ODR. On September 10, 2003, Judge Paula J. Omansky, New York State Supreme Court Justice, New York County, rendered a decision affirming respondents' determination to deny petitioner's application.

On March 28, 2002, petitioner submitted a third application for disability retirement. In addition to petitioner's application for ADR, the Police Commissioner filed an application for ODR on the petitioner's behalf. The Medical Board — once again — recommended disapproval of both the ADR and ODR applications.

On October 8, 2003, the Board of Trustees considered petitioner's case, and remanded petitioner's case to the Medical Board.

Once again, the Medical Board adhered to its determination.

On June 9, 2006, petitioner's attorney submitted a letter to the Executive Director of the Police Pension Fund requesting a remand of petitioner's case. The Board of Trustees remanded petitioner's case to the Medical Board, and the Medical Board, once again, reaffirmed its previous decision to recommend disapproval. On June 13, 2007, the Board of Trustees reviewed and discussed petitioner's case, and did not find any compelling reason for an additional remand.

This second Article 78 proceeding was then commenced.

Petitioner's Contentions

Respondents' denial of petitioner's ADR pension application was legally deficient as it is not rational to deem an officer who cannot carry a firearm, and who is unable to grapple with perpetrators and emotionally disturbed persons, to be fit for full duty, and also, there was no articulation by the Medical Board of the specific requirements of full duty police work and how they felt an officer with decreased strength and reduced motion in his dominant hand who could not qualify to carry a weapon, could perform the same.

Administrative Code § 13-252, the controlling ADR statute, states that if a "member is physically or mentally incapacitated for the performance of city-service," he is to be retired on an ADR pension. Respondents will argue that it must only be shown that the Medical Board's decision be based on "substantial credible evidence." It is petitioner's contention that additional requirements exist for a denial to be legally sufficient. These requirements have not been met in the case at bar, including that a denial be rational and that the Medical Board present a full and detailed "articulation" of its basis and reasoning.

Simply being listed as "full duty" by the Department does not render one capable of full duty for pension purposes. The commonly accepted standard in determining if a disability pension applicant is "incapacitated for city service" has always been whether an applicant is capable of performing the "essential job functions" of a police officer. Said essential job functions are the regular and customary tasks of a standard full duty officer including: apprehending criminals, handling a firearm, subduing emotionally disturbed individuals, riot control. If an officer is unable to perform these tasks at an optimal level, he puts his life, the lives of his fellow officers and the general pubic in grave danger.

Respondents' Opposition

The Board of Trustees is bound by the Medical Board's determination as to whether or not petitioner is disabled, provided the determination is supported by credible evidence. There was credible medical evidence to support the finding that petitioner was not disabled from performing police duty.

To be entitled to accident disability retirement, petitioner must have shown to the Medical Board, as a threshold matter, that he was disabled from performing full duty. Petitioner failed to meet his burden of showing the Medical Board that he was disabled and, thus, is not entitled to disability retirement benefits.

Analysis

CPLR 7803 states that the court review of an administrative determination consists of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty imposed. CPLR 7803(3) ( see Windsor Place Corp. v New York State DHCR, 161 A.D.2d 279 [1^st Dept.1990]; Mazel v DHCR, 138 A.D.2d 600 [1st Dept. 1988]; Bambeck v DHCR, 129 A.D.2d 51 [1^st Dept. 1987], lv. den. 70 N.Y.2d 615). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts." Matter of Pell v Board of Education, 34 N.Y.2d 222, 231(1974). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Matter of Pell v Board of Education, 34 N.Y.2d, at 231. The court's function is completed on finding that a rational basis supports the administrative determination ( see Howard v Wyman, 28 N.Y.2d 434). Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion ( see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 A.D.2d 72 [1^st Dept.], aff'd 66 N.Y.2d 1032).

Pell v Board of Ed. of Union Free School Dist. No. . . ., 356 N.Y.S.2d 833 N.Y. 1974, is instructive on the basic standard of Article 78 review:

In article 78 proceedings: the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence. (Cohen and Karger, Powers of the New York Court of Appeals, s 108, p. 460; 1 N.Y.Jur., Administrative Law, ss 177, 185; see Matter of Halloran v. Kirwan, 28 N.Y.2d 689, 690, 320 N.Y.S.2d 742, 743, 269 N.E.2d 403 (dissenting opn. of Breitel, J.)). The approach is the same when the issue concerns the exercise of discretion by the administrative tribunals. The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious. (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460-461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, ss 177, 184; Matter of Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 650-651, 234 N.E.2d 679, 681-682).

Pell at 839.

On judicial review of an agency action under CPLR Article 78, the courts must uphold the agency's exercise of discretion unless it has "no rational basis" or the action is "arbitrary and capricious." Pell v Board of Ed. Union Free School District, 34 NY2d 222, 230-31, 356 NYS2d 833, 839 (1974) "The arbitrary and capricious test chiefly 'relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." 34 NY2d at 231, 356 NYS2d at 839 See also Jackson v New York State Urban Dev Corp., 67 NY2d 400, 417, 503 NYS2d 298, 305 (1986) (on review of agency action under CPLR Article 78, the courts may not "second guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence").

Moreover, where, as here, the administrative determination involves factual evaluation within an area of the agency's expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference. See Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 355, 363, 514 NYS2d 689, 693 (1987). Courts are required to "resolve [any] reasonable doubts in favor of the administrative findings and decisions" of the responsible agency. Town of Henrietta v Department of Envtl. Conservation, 76 A.D.2d 215, 224, 430 NYS2d 440, 448 (4^th Dep't 1980). See also Jackson, 67 NY2d at 417, 503 NYS2d at 305; City of Rome v Department of Health Dept., 65 A.D.2d 220, 225, 441 NYS2d 61, 64 (4^th Dep't 1978), lv. To app. denied, 46 NY2d 713, 416 NYS2d 1027 (1979).

And, "Where evidence conflicts, issues of credibility are the province of an administrative hearing officer, since 'the decisions by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts.' " Wooten v Finkle, 285 AD2D 407, 408 (1^st Dept 2001) ( quoting Berenhaus v Ward, 70 NY2d 436, 443 (1987); Matter of Stork Rest. v Boland, 282 N.Y. 256, 267, 26 N.E.2d 247; Matter of Acosta Wollett, 55 N.Y.2d 761, 447 N.Y.S.2d 241, 431 N.E.2d 966; Matter of Verdell v Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 390, 813 N.Y.S.2d 68).

Both petitioner and respondent agree that the seminal case assessing the propriety of the determination that petitioner was not physically disabled for police duty is Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756 (1996). In Borenstein, the Court of Appeals held that:

In an article 78 proceeding challenging the disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary or capricious (see, Matter of Canfora v Board of Trustees, 60 NY2d 347, 351; Matter of Pell v Board of Educ., 34 NY2d 222, 230-231). Ordinarily, a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence (see, Matter of Tobin v Steisel, 64 NY2d 254, 259; Matter of Canfora v Board of Trustees, supra). While the quantum of evidence that meets the "substantial" threshold cannot be reduced to a formula, in disability cases the phrase has been construed to require "some credible evidence" (see, e.g., Matter of Longo v City of New York, 178 AD2d 253, 255, affd 79 NY2d 1011; Matter of Goldman v McGuire, 101 AD2d 768, 770, affd 64 NY2d 1041; Matter of Belnavis v Board of Trustees, 84 AD2d 244, 248; Matter of Manza v Malcolm, 44 AD2d 794; Matter of Drayson v Board of Trustees, 37 AD2d 378, 380, affd 32 NY2d 852). "Some credible evidence" strikes a proper balance between deference to the Medical Board and accountability to NYCERS members.

Id. at 791.

In Borenstein, the Court found that a determination by the Medical Board that respondent was not physically disabled for the purpose of performing city-service was based on some credible evidence and was not arbitrary and capricious where the Medical Board, while considering respondent's subjective complaints of pain when determining disability, found that the medical evidence submitted by respondent was not dispositive on the issue of disability but was subject to conflicting interpretations. The Board alone had the authority to resolve such conflicts. In each of its two final reports submitted to the Board of Trustees, the Medical Board detailed what medical proof had been considered, specified the nature of respondent's complaints and outlined the results of its physical examinations of respondent, concluding that respondent's physical condition was not disabling for duty.

And, in the instant case, this court is without authority to determine, as a matter of law, that petitioner was medically disabled for the performance of city-service, since the Medical Board thoroughly evaluated all of the medical evidence, on multiple occasions, and found that petitioner was not so disabled. ( Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of Demarco v New York City Employees' Retirement Sys., 211 AD2d 594; Matter of Cammarota v Teachers' Retirement Sys., 205 AD2d 412; Matter of Nemecek v Board of Trustees, 99 AD2d 954; Matter of Whalen v Monaghan, 285 App Div 884, 309 NY 929; Matter of Appleby v Herkommer, 165 AD2d 727; Matter of Spiro v Ward, 159 AD2d 225; Matter of Bevers v New York City Employees' Retirement Sys., 179 AD2d 489; Matter of Drayson v Board of Trustees, 37 AD2d 378, 32 NY2d 852; Matter of Brown v New York City Employees' Retirement Sys., 99 AD2d 451.)

The Medical Board's determination, after multiple clinical examinations of petitioner and review of x-rays and the conflicting opinions including petitioner's own doctors, is based on substantial credible evidence. In this case, the Medical Board exhaustively evaluated petitioner's multiple disability applications, and the Board of Trustees was therefore justified in relying on the Medical Board's final, consistent determination.

Conclusion

Based on the foregoing, it is here

ORDERED and ADJUDGED that the application of petitioner Robert Knudsen, for a judgment pursuant to Article 78 of the CPLR (1) reviewing and annulling the action of the respondents Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, the Board of Trustees of the Police Pension Fund, Article II, the New York City Police Department, and The City of New York herein denying petitioner a line of duty accident disability retirement allowance pursuant to the Administrative Code § 13-252; and declaring said action to be arbitrary, capricious, unreasonable and unlawful; (2) directing and ordering the respondents to retire petitioner with a line of duty accident disability retirement allowance; and (3) directing that the Board allow petitioner and/or his representatives to present such testimony as is necessary at a hearing held before the Board in order to prove his entitlement to an accident disability retirement is denied in its entirety; and it is further

ORDERED and ADJUDGED that the Petition herein is dismissed; and it is further

ORDERED that counsel for respondents shall serve a copy of this Order with notice of entry within twenty days of entry on counsel for petitioner.

This constitutes the decision and order of this court.