In this CPLR Article 78 proceeding, petitioner Joseph E. McAdams seeks a judgment annulling the October 11, 2006 decision of respondent The Board of Trustees of the Police Pension Fund ("Board") that denied McAdams's application for accident disability retirement benefits ("ADR"). Petitioner argues that the Board's determination was arbitrary and capricious and further asks the court for a judgment directing the Board to retire him with a line of duty ADR retroactive to the date of his retirement . In the alternative, McAdams asks that the matter be remanded to the Board for further hearings and that he be permitted to present testimony in [*2]support of his application for ADR. Petitioner also seeks a subpoena pursuant to CPLR 2307 directing service of the record and minutes of the proceedings below. For the reasons set forth below, the petition is granted and the matter remanded to the Board for further actions consistent with this decision.

McAdams, an attorney, was a full time member of the New York City Police Department ("NYPD") from July, 1996 until his service retirement. From 1998 until November, 2001, when he was promoted to sergeant, he worked as a law clerk to the department's Deputy Commissioner of Trials.

McAdams was on duty at One Police Plaza ("Headquarters") on September, 11, 2001 when the attacks on the World Trade Center occurred. He reports that he heard the first plane hit the South Tower and witnessed the second plane hit the North Tower. Two of McAdams' close friends and his brother-in-law were killed in the ensuing destruction of the towers. Immediately following the attack, the NYPD was placed on 24 hour duty and McAdams worked over 28 hours between September 11th and 12th. He was then placed on standby at Headquarters. It is undisputed that McAdams did not work directly at the site of the fallen buildings, but that he did work within the area defined as the "World Trade Center site."^[FN1]

McAdams reported that in the weeks following September 11th, he began having difficulty sleeping, and he began thinking of suicide, crying without warning and experiencing nightmares. On December 11, 2001, McAdams entered a police department peer assistance program, POPPA ^[FN2], and he also began seeing a psychiatrist, Dr. Dowling, of the Smithtown Psychiatric Services, who diagnosed McAdams with post traumatic stress disorder ("PTSD") and major depression as a result of the World Trade Center attack (Petition, Ex. C). After his entry into POPPA, McAdams never returned to full duty. On December 3, 2002, the commanding officer of the NYPD Medical Division requested that the Department process a line of duty injury report on behalf of McAdams, stating, "[t]he injury may have occurred as a result of his assignment at the World Trade Center site on September 11, 2001." (Petition, Ex. D). During this time, McAdams was also monitored by a clinical psychologist, Myron Drazen, and by Dr. Gregory Mack, an NYPD psychologist who diagnosed McAdams with PTSD, panic disorder with agoraphobia, and major depressive disorder, stating, "Sergeant McAdams presents with problematic psychological functioning as an apparent reaction to the terrorist attacks on the World Trade Center on 9-11-01." (Petition, Ex. F) In addition, McAdams saw a clinical social worker, Ernest Leuci who, in his report, reiterated Dr. Mack's diagnosis and opined, "I assert that this is the result of his exposure and involvement as a New York City Police Officer during the [*3]events occurring at the World Trade Center on September 11, 2001." (Petition, Ex. G).

On August 12, 2003, McAdams submitted his application for ADR to the NYPD citing PTSD from the events on September 11th . On August 29, 2003 the Police Commissioner submitted an application for ordinary disability retirement ("ODR") on McAdams's behalf based on the premise that McAdams suffered from a psychological disorder ^[FN3].

Initially, the Police Pension Fund Medical Board ("Medical Board")^[FN4] deferred McAdams' application for six months with a recommendation that he attempt to perform limited/restricted duty (Petition, Ex. K) but, on March 29, 2004, despite the opinions of Drs. Drazen and Dowling and Caseworker Leuci stating that McAdams could not function as a police officer, it issued a decision and recommendation denying McAdams both ADR and ODR. (Petition, Ex. P). However, on June 9, 2004 the Board remanded the matter to the Medical Board stating that McAdams' psychological injury had been documented by three or four doctors and the Medical Board failed to provide an adequate explanation for denying McAdams' application. (Petition, Ex. Q). On August 16, 2004, McAdams was re-examined by the Medical Board which again denied both applications stating that:

The Medical Board has now fully reviewed all

material presented to it. The sergeant's role as a

disaster worker near the World Trade Center site

differs markedly from the role of a helpless victim

for whom the concept of a stress disorder was

formulated. His ability to function adequately for

promotion to sergeant would preclude significant

emotional sequelae subsequent to the events of

of September 11, 2001. In addition, the mental status

examination has differed markedly on three occasions

when seen by the Medical Board and has been

inconsistent with prior descriptions and the objective

material reviewed by the Medical Board. These

discrepancies would indicate significant simulation on

the sergeant's part.

Based on the above, the Medical Board found that there was insufficient evidence to substantiate a disorder that would preclude McAdams from functioning as a police officer. [*4](Petition, Ex. R) On November 10, 2004, the Board adopted the Medical Board's decision and issued a final decision denying the applications for ADR and ODR. (Petition, Ex. S). Immediately thereafter, McAdams instituted an Article 78 proceeding, which he withdrew without prejudice based on the Board's decision to reconsider his application for ADR. (Petition, Exs. V and W).

In the interim, McAdams' application for social security disability benefits was approved. In a decision dated February 10, 2005, Administrative Law Judge Linda Stagno stated, "[a]dditionally, he has severe post traumatic stress disorder as a result of his experiences during the World Trade Center attack, . . . claimant's residual functional capacity is so compromised that there are no jobs existing in significant numbers in the national economy that he can perform." (Petition, Ex. T, pp. 2-3).

On March 9, 2005, the Board reconsidered McAdams' ADR application and, based on an opinion from the NYC Law Department ^[FN5], it remanded the matter to the Medical Board directing that body to clarify and enlarge upon its prior report. In particular, the Board requested:

[T]hat the Medical Board comment on the findings contained

in the reports submitted by the medical professionals who

found Sergeant McAdams to be suffering from post-traumatic

stress disorder as a result of the World Trade Center attacks

and its reasons for rejecting the opinions of his treating

physicians.

We request additionally that the Medical Board support its

opinion with specific references to any documents or

statements on the record, such as treatment notes, results of

psychological testing, medication history is it relying upon

and rejecting these physicians' assessments of SERGEANT

McADAMS' psychological status. [*5]

(Petition, Ex. W, p. 10).

On March 20, 2005, at the request of the Medical Board, petitioner was interviewed by Dr. Celia Irvine, a psychologist with the Psychological Evaluation unit of the NYPD. Dr. Irvine opined that McAdams was traumatized by the events of September 11th , that he was not capable of performing the duties of a police officer and that his prognosis for recovery was poor. She diagnosed McAdams with PTSD and panic disorder with agoraphobia. (Petition, Ex. X).

On June 13, 2005, upon reexamination of McAdams, the Medical Board rescinded its prior decision, and, without addressing the Board's March 9, 2005 requests, it recommended that the Board approve the Police Commissioner's application and grant ODR benefits for McAdams pursuant to Section 13-251 of the Administrative Code. The Medical Board also stated that McAdams' final diagnosis is "Mixed Personality Disorder". (Petition, Ex.Y).

In 2005 the legislature enacted an amendment to the pension law that provides that police officers who become physically or emotionally ill after participating in the World Trade Center recovery, rescue, or clean up for a minimum of forty hours are presumptively eligible for ADR benefits ("the WTC bill") and on November 30, 2005, McAdams submitted a "Notice of Participation in the World Trade Center Rescue, Recovery or Clean Up Operations."^[FN6]

On February 6, 2006 the Board reconsidered McAdams' application and remanded it to the Medical Board as "a 9/11 case". (Petition, Ex. AA). On April 3, 2006, the Medical Board rescinded its previous decision and recommended, based on the WTC bill, that the Board approve McAdams' application for ADR. The Medical Board's final diagnosis was, "Mixed Personality Disorder, Post Traumatic Stress Disorder." (Petition, Ex. BB).

Thereafter, on October 11, 2006, based on an opinion from the NYC Law Department ^[FN7], the Board voted and, in a 6-6 decision, disapproved McAdams' ADR application for ADR based on the WTC bill, because they, "were not able to verify that this sergeant put in the minimum eligible amount of 40 hours" involved in rescue, recovery or clean-up at the WTC site. (Petition, Exs. FF & GG). Thus, it appears that the Board merely found that McAdams was not facially eligible for the presumption of disability articulated in the WTC bill. It did not, however, make further findings based on the medical evidence McAdams submitted in support of his ADR application.

This Article 78 petition followed.

It is a well settled rule that, in an Article 78 proceeding, a court may not substitute its judgment for the agency's determination but shall decide if that determination can be supported on any reasonable basis (Matter of Clancy-Cullen Storage Co. v Board of Elec. of the City of NY, [*6]98 AD2d 635, 636 [1st Dept. 1983]). The test of whether a decision is arbitrary or capricious is " determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (Matter of Pell v Board of Educ., 34 NY2d 222, 232 [1974][quoting 1 NY Jur. Admin. Law § 184, p. 609]). An arbitrary action is without sound basis in reason and generally taken without regard to the facts (Matter of Pell, at 232).

Reviewing courts are "not empowered to substitute their own judgment for that of the administrative agency merely because they are of the opinion that a better solution could thereby be obtained. " (Peconic Bay Broadcasting Corp. v Board of App., 99 AD2d 773, 774 [2d Dept.], lv. denied 62 NY2d 603 [1984]). However, where the agency applies an incorrect standard (see, Matter of Tobin v Steisel, 64 NY2d 254 [1985]), or fails to consider the credible evidence submitted by the petitioner (see, Cusick v Kerick, 305 AD2d 247 [1st Dept 2003]), a court may determine that the agency's actions were without foundation in law or fact and therefore, arbitrary and capricious.

Accident disability retirement benefits are provided to New York City police officers who are members of the Police Pension Fund and who become physically or mentally incapacitated from service as the proximate result of an accidental injury received in the course of work, as certified by the departmental medical board. (NYC Admin. Code § 13-252). Ordinary disability retirement benefits are provided to police officers who are members of the Police Pension Fund and who become physically or mentally incapacitated from service and ought to be retired, as established by medical examination and reported by the departmental medical board. (NYC Admin. Code § 13-251).

The "World Trade Center Bill" provides that any illness, physical or mental, as specified in the law, that results in disability to a police officer who participated in World Trade Center rescue, recovery, or cleanup operations for a minimum of 40 hours between September 11, 2001 and September 12, 2002, shall be presumptive evidence that the disability was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the Department can prove the contrary by competent evidence. There is an exception to the 40-hour rule for a police officer who was unable to work the full 40 hours because he was physically injured while involved in rescue, recovery, or cleanup operations between September 11 and September 12, 2001.^[FN8]

McAdams argues that the Board's decision is arbitrary and capricious because he established, by competent evidence, that he is psychologically incapacitated from the performance of his police duties and that incapacity resulted from a line of duty accident, the terrorist attack on the World Trade Center, that caused or exacerbated his incapacity. McAdams claims that the Board's opinion is based on supposition and conjecture and not supported by credible evidence, and that it therefore cannot be sustained.

In addition, McAdams argues that he falls under the provisions of the WTC bill and that he is entitled to the presumption of causality articulated in that bill because he was assigned to [*7]Headquarters, a location within the World Trade Center site, as defined in the bill, for more than 40 hours during the relevant period.

In opposition, respondents argue the petitioner is not eligible for the WTC bill presumption because he did not participate in World Trade Center rescue, recovery, or cleanup operations for the required minimum number of hours and that, under Section 13-252 of the Administrative Code, there was ample credible evidence supporting the Board's determination that McAdams' disability did not arise from his duties as a police officer.

The court notes that McAdams commenced this Article 78 petition pursuant to Section 13-252 of the Administrative Code. Accordingly, the questions before the court are whether McAdams sustained his burden of proof in demonstrating, by competent evidence, that his disability was caused by a line of duty accident and whether the Board's denial of McAdams' application for ADR is supported by credible evidence. Assuming, arguendo, that the Board was correct in its determination that the World Trade Center bill's presumption is not applicable to McAdams, that decision did not finally determine the case. Although there is no case law discussing the effect of the inapplicability of the WTC presumption, it would appear that, as in the usual case, McAdams simply retained the burden of proof to demonstrate, by competent evidence, that his psychological disability was caused or exacerbated by a line of duty accident. (See ,e.g., McNeill v Shutts, 258 AD2d 695 [3d Dept. 1999][where presumption is not applicable, defendant must come forward with affirmative facts]; Mackey v Barnhart, 306 F. Supp. 2d 337, 341 [EDNY 2004]; Naranjo v Filion, 2003 WL 1900867 [SDNY 2003]).

A. The World Trade Center Bill

The World Trade Center Bill defines participation in World Trade Center rescue, recovery and cleanup operations to mean, "participat[ion] in the rescue, recovery or clean up operations at the world trade center site between September eleventh, two thousand and one and September twelfth, two thousand and two." The statute does not define the words "rescue", "recovery" or "clean up", however, it is a well settled rule of statutory construction that statutes are to be construed so as to give effect to the plain and ordinary meaning of the words. (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98 [1997]; City of New York v Land and Bldg. Known as 355 W. 41st St., 23 AD3d 183 [1st Dept. 2005]; McKinney's Con. Laws of NY, Book 1, Statutes, § 94). The Webster's On-Line Dictionary defines "rescue" as "to free from harm or evil"; "recovery" as "the act of regaining or saving something," and "clean up" as "putting things in order."

Here, McAdams was assigned to Headquarters, a location that is admittedly within the statutorily defined "World Trade Center site." The transcripts of the Board's meetings on September 13, 2006 and October 11, 2006 demonstrate that the Board did not specifically identify the work that McAdams performed while he was "on standby" at Headquarters and it did not explain why that work did not qualify as rescue, recovery, and/or cleanup under the statute. Rather, the Board appears to rely on an opinion from the New York City Law Department, wherein the Law Department stated, "[t]o summarize, we don't think that the work qualifies as rescue/cleanup under the World Trade Center activities." The Law Department did not reveal the records it reviewed or the precedent it relied on in forming that opinion (Petition, Ex. FF, p. 44). However, based on that opinion, the Board found that because McAdams' memo book noted only two tours of duty that would qualify as being related to rescue, recovery, or clean up, he did not meet the hourly requirement for the presumption. Thereafter, McAdams [*8]submitted additional command log entries to the Board that purportedly showed additional hours. The Board presumably considered the new submissions, but, when it met again on October 11, 2006, it merely stated, "we are not able to verify that this sergeant put in the minimum eligible amount of 40 hours." On that basis, it appears that the Board, by a 6 - 6 vote, denied McAdams' application for ADR.^[FN9]

Here, there is a question as to the nature of the work McAdams performed on standby and whether that work would qualify as rescue or recovery or cleanup. Accordingly, the matter of the applicability of the World Trade Center presumption is remanded to the Board so that it can make specific findings regarding the work that McAdams preformed while on standby and whether that work falls within the ordinary meaning of "rescue, recovery, or clean up."^[FN10]

B. ADR Pursuant to Section 13-252

However, even if the Board is correct in its finding that the World Trade Center presumption does not apply, the Board's summary denial of McAdams' ADR application, without more, is arbitrary and capricious because the Board is required to base its decision denying an ADR application on some credible evidence (Matter of Meyer v Board of Trustees of N.Y.C. Fire Dept., 90 NY2d 139 [1997]; Matter of Cusik v Kerik, 305 AD2d 247 [1st Dept. 2003]; Belnavis v Board of Trustees of N.Y.C. Fire Dept., 84 AD2d 244 [1st Dept. 1982], app. dismissed 56 NY2d 645 [1982] ["[w]hile the Medical Board was free to come to any conclusion supported by the medical evidence before it, the Board could not disregard the only competent evidence on the issue before it."]). Here, the Board made no findings whatsoever and the court is unable to determine the basis of its final decision denying ADR to McAdams (Matter of Gilligan, 175 Misc. 160 [Sup. Ct. Erie County 1940] ["[i]f no evidence is found to support the determination it will be deemed arbitrary and capricious."]).

Generally speaking, an applicant for benefits must prove the existence of a disability and that the disability is causally related to an injury sustained in the line of duty (see Matter of Drayson v Board of Trustees of Police Pension Fund, 37 AD2d 378 [1st Dept 1971], aff'd 37 AD2d 378 [1973]). Courts defer to the rational determinations by the Board of Trustees when it comes to applications for accidental disability benefits (Matter of Canfora v Board of Trustees of Police Pension Fund, 60 NY2d 347 [1983]). Where, as here, the determination of the Board of Trustees is the result of a tie vote, a court may not set aside the denial of accidental disability retirement "unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service related accident." (Matter of Meyer, 90 NY2d at 145 [citation and internal quotation marks omitted]) The court may not disturb the final award, "as long as there was any credible evidence of lack of causation before the Board of Trustees." (Id.) Credible evidence has been defined as " evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered' and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion'" (Matter [*9]Cusick v Kerik, 305 AD2d at 248 quoting Matter of Meyer, 90 NY2d at 147).

In this case, as detailed above, McAdams submitted medical opinions from Dr. Myron Drazen, a clinical psychologist, Dr. Gregory Mack, a police department psychologist, Dr. Ernest Leuci, a clinical social worker, Dr. Frank G. Dowling, a psychologist and Celia Irvine, Ph. D., a police department psychologist all of whom diagnosed McAdams with PTSD that was caused or exacerbated by the events of September 11th. (See Matter of Petrella v Board of Trustees, 141 AD2d 361 [1st Dept. 1988]). Moreover, each of the above professionals opined that McAdams would be unable to resume his police department duties. In addition, in its April 3, 2006 decision, the Medical Board diagnosed McAdams with PTSD and stated, "[a]fter a full review of the material presented to the Medical Board, the Board rescinds its previous decision and recommends approval of the sergeant's own application for Accident Disability Retirement. . . ."^[FN11] Accordingly, it appears that McAdams met his burden of establishing a disability and that the disability is causally related to an injury sustained in the line of duty.

Accordingly, because the Board made no findings at all, except that McAdams was not entitled to the World Trade Center presumption, the decision denying McAdams ADR is annulled and the matter is remanded to the Board for reconsideration. If the Board adheres to its prior decision that the WTC presumption does not apply, then such reconsideration should be based on McAdams' evidentiary submissions and any conflicting credible evidence before the Medical Board.

Accordingly, it is

ORDERED and ADJUDGED that the petition is granted to the extent that the decision that McAdams is not entitled to the World Trade Center presumption is annulled and remanded to the Board so that it can make specific findings regarding the work that McAdams performed while on standby at Headquarters and whether that work qualified as rescue, recovery, and/or cleanup for the purposes of the World Trade Center bill; and it is further

ORDERED and ADJUDGED that the Board's decision denying McAdams ADR is annulled and remanded to the Board for it to reconsider its findings, and if it finds, on remand, that the WTC presumption does not apply, then such reconsideration should be based on McAdams' evidentiary submissions and any conflicting credible evidence before the Medical Board.

This shall constitute the decision, order and judgment of the court.

DATED: October 2, 2007E N T E R :

__________________________________________

J.S.C.