Wade v. N.Y.C. Emps.' Ret. Sys.

2024 NY Slip Op 00322

In the Matter of Gerron Wade, respondent, v. New York City Employees' Retirement System, et al., appellants.

No. 2020-06010, Index No. 2269/19

Supreme Court of New York, Second Department

January 24, 2024

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Ingrid R Gustafson and Janet L. Zaleon of counsel), for appellants.

Chet Lukaszewski, P.C., Mineola, NY, for respondent.

VALERIE BRATHWAITE NELSON, J.P. DEBORAH A. DOWLING BARRY E WARHIT LAURENCE L. LOVE, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated February 14, 2019, which adopted the recommendation of the Medical Board of the New York City Employees' Retirement System and denied the petitioner's application for performance of duty disability retirement benefits pursuant to General Municipal Law § 207-o, New York City Employees' Retirement System and City of New York appeal from a judgment of the Supreme Court, Kings County (Wavny Toussaint, J.), dated June 24, 2020. The judgment granted the petition, annulled the determination, and directed that the petitioner be granted performance of duty disability retirement benefits pursuant to General Municipal Law § 207-o retroactive to February 14, 2019.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed on the merits.

The petitioner, a retired New York City correction officer, commenced this CPLR article 78 proceeding challenging a determination of the Board of Trustees of the New York City Employees' Retirement System dated February 14, 2019, adopting the recommendation of the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) denying his application for performance of duty disability retirement benefits pursuant to General Municipal Law § 207-o (hereinafter section 207-o benefits). In a judgment dated June 24, 2020, the Supreme Court granted the petition, annulled the determination, and directed that the petitioner be granted section 207-o benefits retroactive to February 14, 2019. We reverse.

The Medical Board rebutted the presumption of General Municipal Law § 207-o that the petitioner's disabling structural heart condition, a condition involving an alternate pathway for electrical signals, was related to the stress of his job as a correction officer with competent medical evidence, including medical evidence that the petitioner did not suffer from any hypertensive heart disease (see Matter of Bradley v New York City Employees' Retirement Sys., 193 A.D.3d 847).

Contrary to the contention of our dissenting colleague, the Medical Board did not deny the petitioner section 207-o benefits by focusing solely on the absence of hypertension (see Matter of Luc v O'Neill, 189 A.D.3d 504, 505). Rather, the Medical Board, which included a cardiologist, Robert Braff, concluded in a May 14, 2018 report that "[t]he defined arrythmia, now ablated, [atrioventricular nodal reentrant tachycardia (hereinafter AVNRT)], is not precipitated by known cardiac stressors (i.e. hypertensive heart disease or coronary artery disease), and is an intrinsic structural electrical defect." Thereafter, in an addendum dated December 17, 2018, the Medical Board clarified that "[a]lthough there is mention of hypertension, in the record, the Medical Board finds that there is no documentation of hypertensive heart disease and hypertension is not the underlying cause of his AVNRT. The echocardiogram... showed normal chamber and wall thickness." While a physician member of the Medical Board stated at a meeting of the Board of Trustees of the New York City Employees' Retirement System that stress could precipitate an arrythmia, he also asserted that stress was not the cause of the petitioner's heart defect, thereby rebutting the presumption that the petitioner's heart condition was related to the stress of his employment.

Therefore, the determination adopting the recommendation of the Medical Board was not irrational or arbitrary and capricious (Matter of Servedio v Lee, 188 A.D.3d 891). Accordingly, we reverse the judgment, deny the petition, and dismiss the proceeding on the merits.

BRATHWAITE NELSON, J.P., WARHIT and LOVE, JJ., concur.

DOWLING, J., dissents, and votes to affirm the judgment, with the following memorandum:

In 2017, the petitioner, then a correction captain who had worked for the Department of Correction at Rikers Island Correctional Facility for more than 11 years, began experiencing lightheadedness and heart palpitations while at work, and passed out twice at work after experiencing chest pains, rapid heart beat, and shortness of breath. The petitioner was only 37 years old at the time, had passed a physical examination on entry into service with the Department of Correction, had no history of cardiac disease, and had never smoked. After seeking medical treatment, the petitioner was diagnosed with atrioventricular nodal reentrant tachycardia (hereinafter AVNRT), a form of supraventricular tachycardia, and underwent an ablation procedure and implantation of a loop recorder to detect abnormal heart rhythms. The petitioner's blood pressure was also noted to be "higher than it should be," and he was prescribed Metroprolol, among other medications. The petitioner continued to experience episodes of supraventricular tachycardia with palpitations postablation. A follow-up echocardiogram performed in July 2017 showed normal function and wall thickness.

In January 2018, the Department of Correction applied to the New York City Employees' Retirement System (hereinafter NYCERS) requesting that the petitioner be considered for performance of duty disability retirement benefits, inter alia, pursuant to General Municipal Law § 207-o (hereinafter section 207-o benefits)-the "Heart Bill"-based on his diagnosis of "[n]europathy status post placement of implantable loop recorder - primary AVNRT 9C AV Nodal re-entry tachycardia[ ], lightheadedness." The petitioner subsequently filed an application with NYCERS for section 207-o benefits and ordinary disability benefits pursuant to Retirement and Social Security Law § 507-a based on "cardiac impairment." The Medical Board of NYCERS (hereinafter the Medical Board) concluded that the petitioner was disabled from performing his duties as a correction captain based on his diagnoses of AVNRT with recurrent symptomatic supraventricular tachycardia postablation, and approved the application for ordinary disability benefits under Retirement and Social Security Law § 507-a. However, the Medical Board recommended that the applications for section 207-o benefits be denied because the basis for the petitioner's disabling symptoms was his AVNRT, an "intrinsic structural electrical...