By Notice of Petition, dated November 7, 2006, the petitioner, Joseph Digangi, seeks, inter alia, a judgment pursuant to Article 78 of the Civil Practice Law and Rules, reviewing and annulling the action of the respondents, the New York City Employees' Retirement System ("NYCERS") and the City of New York's ("the City"), determination to deny petitioner a disability retirement, and directing the respondents to retire petitioner with an accident disability retirement.

Petitioner became a member of the New York City Employees' Retirement System on June 7, 1991, and was employed as a Correction Officer with the New York City Department of Correction. On November 23, 2005, petitioner submitted an application for disability retirement based on line-of-duty injuries he sustained on August 28, 1995 and September 28, 2004. By letter dated December 13, 2005, NYCERS informed petitioner that it had received his application, but that petitioner had failed to indicate for which benefit he was applying. NYCERS asked petitioner to return a new completed, signed, and notarized application by the close of business on December 28, 2005. In response, petitioner filed a second application for disability retirement, which indicated that petitioner was seeking a disability retirement pursuant to New York Retirement and Social Security Law § 507-c. In his application, petitioner alleged that he was disabled from service as a Correction Officer due to "s/p rt knee surgery," lumber spine stenosis, and degenerative disc disease. [*2]

By letter dated March 23, 2006, NYCERS informed petitioner that the Department of Correction did not have any report of an August 28, 1995 line-of-duty incident, and that NYCERS could only consider the injuries sustained on September 28, 2004.

According to the Agency Report on Incident regarding the incident of September 28, 2004, petitioner twisted his right knee and injured his lower back during an inmate assault. Petitioner also filed for Worker's Compensation based on the September 28, 2004 incident, alleging that he "was assaulted by a violent inmate thus causing injuries to his right knee and lower back." Criminal charges were filed against the inmate that assaulted petitioner on September 28, 2004.On March 28, 2006, the NYCERS' Medical Board interviewed and examined petitioner in consideration of his disability retirement application. The Medical Board also received, and reviewed, a number of documents and medical reports regarding petitioner and the September 28, 2004 incident. After a thorough review, the Medical Board concluded that the documentary and clinical evidence failed to substantiate that petitioner is disabled from performing the duties of a Correction Officer. Based on its findings, the Medical Board recommended that petitioner's application for disability retirement under Retirement and Social Security Law § 507-c be denied.Petitioner was sent a letter from NYCERS, dated April 10, 2006, informing him of the Medical Board's recommendation to deny his application for disability retirement. On or about April 28, 2006, petitioner was sent a copy of the Medical Report.

By fax dated May 5, 2006, petitioner's counsel requested that petitioner's application be reviewed at the June 2006 meeting of the Board of Trustees. He stated in the letter that counsel would be forwarding new evidence for the Board to consider.

In response to petitioner's counsel's fax, NYCERS sent a fax, dated June 20, 2006, informing petitioner's counsel that the newly submitted medical evidence was insufficient to warrant further consideration of petitioner's disability application. Petitioner, through counsel, was granted an extension until July 7, 2006, to submit further medical documentation, and was informed that no further extensions would be granted. Petitioner was also informed that if no further documentation was received by July 7, 2006, or if any further documentation did not warrant consideration, the Medical Board's recommendation would be presented to the Board of Trustees for ratification.

Petitioner was then notified, by letter dated July 14, 2006, that the Board of Trustees adopted the Medical Board's recommendation to deny petitioner's application for disability retirement.

Petitioner thereafter commenced this Article 78 proceeding with the filing of a petition dated November 7, 2006.

It is axiomatic that in an Article 78 proceeding the court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see Pell v Bd. of Educ., 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact" (id. at 231). A rational basis exists where the determination is " [supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize [*3]the determination'" (Ador Realty, LLC v DHCR, 25 AD3d 128, 139-14 [2005] quoting Pell, 34 NY2d 231).

Retirement and Social Security Law § 507-c sets forth the criteria for members of NYCERS who, like petitioner, are New York City correction officers, to qualify for Accident Disability Retirement. Pursuant to this section, petitioner must show that he is "physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his...duties by, or as a natural and proximate result of, an act of any inmate..." (R.S.S.L. § 507-c [a] [2007]). The applicant has the burden of proving such incapacity and its causation to the NYCERS Medical Board (see e.g. Matter of Evans v City of New York, 145 AD2d 361, 361 [1988]; Matter of Archul v Bd. of Trustees of the New York City Fire Dept, Art 1-B Pension Fund, 93 AD2d 716, 716 [1983]; Matter of Christian v New York City Employees' Retir. Sys., 83 AD2d 507, 509 [1981], affd 56 NY2d 841 [1982]; Matter of Belton v Herkommer, 84 AD2d 713 [1981]).

The question of whether an applicant suffers from the claimed injury, and whether the claimed injury incapacitates the applicant from the performance of city-service is solely for the Medical Board (see e.g. Matter of Borenstein v New York Employees' Retir. Sys., 88 NY2d 756, 760-761 [1996] revg 218 AD2d 523 [1995]; Matter of Confora v Bd. of Trustees of the Police Pension Fund of the Police Dept of the City of New York, 90 AD2d 751 [1982], affd 60 NY2d 347 [1983]; Matter of Demarco v New York City Employees' Retir. Sys., 211 AD2d 594, 595 [1995]. "Whether or not the petitioner is physically disqualified is a scientific question which must be determined by the experts [Medical Board] who examine the petitioner" (Matter of Spiro v Ward, 159 AD2d 225, 226 [1990]. The Board of Trustees cannot make an independent determination regarding disability and the Medical Board's determination that petitioner was not disabled from duty must be sustained as long as it is supported by "some credible evidence" (Matter of Borenstein, 88 NY2d at 759 [1996]; Matter of Meyer v Bd. of Trustees of the New York City Fire Dept Art. 1-B Pension Fund, 90 NY2d 139 [1997]). The Medical Board's own expert opinion constitutes credible evidence when it is based on objective medical evidence, or where the Medical Board clearly articulates a rational, fact-based medical explanation, even in those instances where the Board has not itself conducted a physical examination of the applicant (see e.g. Matter of Meyer, 90 NY2d at 145).

In this action, petitioner contends that the Medical Board failed to justify its recommendation that petitioner's application be denied. The Medical Board, however, laid out its reasoning for its recommendation to the Board of Trustees in a comprehensive eight page report. The report indicates that, in coming to its conclusion, the Board considered documentary and clinical evidence, and its own interview and examination of the petitioner. The evidence indicates, inter alia, that the Board considered petitioner's claims that he has some difficulty walking and standing for prolonged periods of time. The evidence indicates that the Board also considered the fact that petitioner was, subsequent to the incident of September 28, 2004, restricted to light duty. [*4]

The Medical Board issued a report to the Board of Trustees which detailed the medical proof it considered, specified the nature of petitioner's complaints, and outlined the results of its physical examination of petitioner, and the Court cannot substitute its judgment for that of the Medical Board (Matter of Borenstein, 88 NY2d at 761). Any difference in opinion between the Medical Board and any of petitioner's physicians is a conflict of medical opinion, which remains solely within the province of the Medical Board and the Board of Trustees to resolve (see e.g. Matter of Manza v Malcolm, 44 AD2d 794, 795 [1994]). Conflicting medical opinion on the issue of disability "provides no occasion for judicial interference" (Matter of Muffaletto v New York City Employee's Retir. Sys., 198 AD2d 7, 7 [1993]; see also Matter of Borenstein, 88 NY2d at 761; Matter of Scotto v Bd. of Trustees of the Police Pension Fund of the City of New York, 76 AD2d 774, 774 [1980], affd 54 NY2d 918; Matter of DeMarco, 211 AD2d at 595). "When confronted with a conflict of medical opinion, the Board of Trustees is entitled to rely upon the unanimous opinions of the Medical Board" (Matter of Spiro, 159 AD2d 225, 226 [1990]). The Medical Board may rely on its own examination and diagnosis, and use its own medical knowledge and expertise to reach its conclusion after considering the views of other doctors that treated petitioner or reviewed his case (see e.g. Matter of Tobin v Steisel, 64 NY2d 254, 258-59 [1985]; Matter of Topkin v Bd of Educ., 121 AD2d 531, 531 [1986]).

This Court therefore finds that the conclusion of the Medical Board that petitioner did not suffer a disability which would prevent him from performing his duties as a correction officer is supported by credible evidence. Accordingly, it cannot be said that the decision of the Board of Trustees to deny petitioner's application for accident disability retirement was arbitrary or capricious, or without a rational basis (see e.g. Matter of Spiro, 159 AD2d 226; Matter of Manza v Malcolm, 44 AD2d 794; Matter of Drayson v Bd. of Trustess of the Police Pension Fund of the City of New York, 37 AD2d 378, 381 [1971], affd 32 NY2d 852 [1973]). Accordingly, it is

ORDERED, that the petition for a judgment pursuant to Article 78 of the Civil Practice Law and Rules is hereby denied.

This constitutes the Decision, Opinion and Order of this Court.

Dated: May 2, 2007

ENTER,

_________________________

IRA B. HARKAVY

J.S.C.