In these two proceedings under CPLR Article 78, the respective petitioners challenge the respondents' denial of accident disability retirement. Each of the petitioners has moved for an order pursuant to CPLR 3025 allowing him to amend his petition. Those motions came to be heard before this Court on February 2, 2007. [*2]

The procedural history is unclear and somewhat problematic. The stated return date for each of the Petitions was March 20, 2006, but they were apparently adjourned by the clerk until April 28, and twice adjourned again, first to June 23, and then to August 18, 2006. According to the court computer, on August 18 each of the Petitions was "marked off" the calendar; no explanation appears.

Meanwhile, Petitioners filed the instant motions on August 11, 2006, and even though the Petitions had been "marked off," the motions were adjourned by the clerk from the stated return date of August 18 to September 29, and twice adjourned again, first to December 8, and then to February 2, 2007. Neither the Part clerk nor the Court was aware that the motions were not properly on the calendar because of the "mark-offs," and apparently neither were counsel.

In the first instance, therefore, the Court must deal with the "mark-offs." Since it does not appear that the Petitions were dismissed on August 18, 2006 pursuant to Rule 202.27, Uniform Rules for the New York State Trial Courts (22 NYCRR 202.27) (see Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005]; Chowdhury v Phillips, 306 AD2d 51, 53 [1st Dept 2003]), "restoration" is apparently "automatic," even without motion (see Gorski v St. John's Episcopal Hospital, 2007 NY Slip Op 490, * 1 [2d Dept]; Andre v Bonetto Realty Corp, 32 AD3d 973, 974-75 [2d Dept 2006].) The Court "restores" each of the Petitions to the active calendar.

Each of the Petitions alleges that Petitioner, a retired firefighter, applied to the New York City Fire Department, Article 1-B Pension Fund for the benefits of accidental disability retirement; that he was found unfit for firefighter activity by the Department's Medical Committee; that he was then found not to be disabled by the Medical Board of the Pension Fund; and that, on the basis of the Medical Board's finding, he has been denied accidental disability retirement by the Board of Trustees. Each Petitioner challenges the denial as not being supported by some credible evidence and otherwise irrational. (See Matter of Vidal v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 32 AD3d 399, 399 [2d Dept 2006].)

Petitioners' motions seek to amend paragraphs 12 and 16 of their respective Petitions to expressly incorporate documents attached as exhibits to the Petitioner's Memorandum of Law submitted with each Petition. Respondents object on the ground that the documents would impermissibly expand the "record" before the Board, to which this Court is limited in its review of the denial of benefits.

"Leave to amend the pleadings shall be freely given' (CPLR 3025 [b]) unless the proposed amendment will prejudice or surprise the opposing party . . ., or unless the proposed amendment is palpably insufficient or patently devoid of merit." (Matter of Rouson, 32 AD3d 956, 958 [2d Dept 2006].) If Respondents are correct that Petitioners may not present anything to this Court on review that was not part of the "record" before the Medical Board, the proposed amendment might be said to be "palpably insufficient or patently devoid of merit." [*3]

But generally in an Article 78 proceeding in the nature of mandamus, the petitioner is "free to submit to the Court any competent and relevant proof' . . . in support of his contention that the [Medical] Board's determination was irrational or arbitrary." (See Matter of Poster v Strough, 299 AD2d 127, 142-43 [2d Dept 2002]; see also Matter of Mandle v Brown, 5 NY2d 51, 65-66 [1958]; Matter of Newbrand v City of Yonkers, 285 NY 164, 174-78 [1941]; ADC Contracting and Construction Corp v NY City Dept. of Design and Construction, 25 AD3d 488, 489 [1st Dept 2006]; Matter of Kirmayer v NY State Dept. of Civil Service, 24 AD3d 850, 852 [3d Dept 2005].)

It may be that this general rule would not allow a judicial determination based upon a report or record of the petitioner's medical condition when the report or record was not considered by the Board. (See Matter of Wolyniec v Board of Trustees of NY City Fire Dept., Article 1-B Pension Fund, 232 AD2d 495, 496 [2d Dept 1996]; Matter of Rocco v Board of Trustees, Police Pension Fund, 98 AD2d 609, 610 [1st Dept 1983].) Even then, however, it might be appropriate to annul the Board's determination, and remand to the Board for its consideration of the evidence not previously before it. (See Matter of Luisi v Safir, 262 AD2d 47, 50 [1st Dept 1999].)

In any event, the documents that Petitioners here want to put before the Court are not in the nature of additional medical reports or records. Rather, the documents are articles that appeared in professional journals, such as the American Journal of Industrial Medicine, and the New England Journal of Medicine, and include the American Thoracic Society's Guidelines for the Evaluation of Impairment / Disability in Patients with Asthma. Indeed, Petitioners do not challenge the Medical Board's diagnosis of their condition as "mild intermittent asthma," but challenge the conclusion that the diagnosis does not constitute a disability. If the determinations of the Medical Board are worthy of the deference that the Trustees and courts give them, one would hope that the members are familiar with and consider such materials.

The Court notes that these documents are not accompanied by the affirmation or affidavit of any expert who might imbue them with probative value or even explain their significance. But one of the articles is authored by two of the members of the Department's Medical Committee that concluded that Petitioners were unfit for service. In any event, for purposes of Petitioners' motions to amend, an assessment of probative value is not necessary.

In their Supplemental Reply papers, Petitioners attach two additional documents: a decision of the Medical Board dated September 7, 2006, i. e. subsequent to Petitioners' motions, in which the Board elaborates, on a remand from the Board of Trustees, on its conclusion that another firefighter with mild intermittent asthma was not disabled from service; and the Guidelines for the Diagnosis and Management of Asthma, published by the National Institutes of Health, which the Board refers to in the September 7, 2006 decision. The members of the Medical Board on this later decision are the same as decided Petitioners' applications.

The Supplemental Reply papers do not purport to amend the Petitions so as to incorporate [*4]these additional documents. In light, however, of the cited authority, the documents may be considered, again subject to probative value, in reviewing the Medical Board's decisions with respect to these Petitioners.

In the interest of resolving these Petitions, filed on February 22, 2006, the Court will deem the respective Amended Petitions, attached as Exhibits A to the Affirmation on each of the motions, as served on Respondents; and will deem the Respondents' previously filed Verified Answers, as supplemented by their Affirmations in Opposition on this motion, as their Answers to the Amended Petitions.

The respective Petitions are "restored," and the respective motions of Petitioners for amendment are granted as previously stated. The Petitions will be heard on a special Part 7 calendar at 9:30 a.m. on April 19, 2007, Room 461. At that time, the Court will also consider whether further proceedings on these Petitions should be stayed pending the determination of

Matter of Warren v Board of Trustees of the NY City Fire Dept., Art 1-B Pension Fund (index no. 25496/05), as suggested by Petitioners, or whether the three Petitions should be determined together.

March 15, 2007___________________

Jack M. Battaglia

Justice, Supreme Court