In this CPLR Article 78 proceeding, petitioner Juan Rodriguez seeks a judgment:

Petitioner was appointed on September 25, 1982 to the uniformed force of the

New York City Fire Department (FDNY) and served continuously until his ODR. At all relevant times he was a member of the FDNY Pension Fund. Petitioner applied for

ADR as the result of spinal injuries allegedly sustained between 1989 and 1997. The Board of Trustees voted on June 28, 2001 to grant ODR to petitioner. Petitioner, on November 13, 2001, filed a petition to annul that determination.

Justice Gloria Cohen Aronin, in her April 19, 2002 decision, noted that petitioner: injured his lower back when he slipped on ice and fell on December 27, 1989; bruised and twisted his lower back when he slipped on a wet step on December 21, 1994 while stretching a hose line; felt sharp pain to his right lower back while mopping a floor on June 1, 1995; and, injured his left arm and neck while working at a fire scene on November 9, 1997, when a standpipe riser broke and knocked him down. Further, Justice Aronin observed that petitioner was examined by a three-physician Medical Board Committee, on September 15, 1998, which found that he was partially and permanently disabled due to herniated cervical and lumbar discs with radiculopathy. Based upon the Medical Board's findings, a Fire Commissioner's application for ADR or ODR was filed on petitioner's behalf on November 11, 1998.

Then, on January 13, 1999, the 1-B Medical Board (the Medical Board) reviewed petitioner's case, including reports from Dr. Jorge Rivero, dated September 4, 1998, and a report from Dr. Noel I. Perin, dated March 11, 1998 ^[FN2]The Medical Board decided to defer making a recommendation until after petitioner had been evaluated by its neurosurgical consultant, Dr. [*3]Richard Raynor.

Dr. Raynor, after his examination and review of petitioner's MRI's, reported that he believed that petitioner suffered from Parkinson's Disease, which was significant enough to prevent him from performing full fire fighter duties. The Medical Board reviewed and accepted these findings on March 3, 1999. It recommended that petitioner be granted ODR. Over the next two years, the Medical Board was asked by the Board of Trustees to reconsider petitioner's case approximately eight times to review additional reports of doctors who had examined petitioner. The Medical Board ultimately found petitioner: to be disabled from full fire fighter duty due to a benign central tremor, and not Parkinson's Disease; and, not disabled due to his cervical and lumbar spine pathology. It reaffirmed its recommendation that petitioner be retired on ODR. The Board of Trustees, on June 28, 2001, accepted the Medical Board's recommendation to grant ODR to petitioner.

Justice Aronin, in her decision (Rodriguez v Board of Trustees [Sup Ct, Kings County, Index No. 45050/01]), dismissed the petition, holding:

On this record, where the medical evidence admits more

than one inference as to the cause of petitioner's injuries, this court

cannot determine, as a matter of law, what inference should be drawn

(see, Matter of Kmiotek v Board of Trustees, 232 AD2d 640 [2d Dept.,

1996]; Matter of Draves v Board of Trustees, 203 AD2d 568, 569 [2d

Dept., 1994]; Matter of Nicolosi v Board of Trustees, 198 AD2d 282,

283 [2d Dept., 1993]; Matter of Fagan v Board of Trustees, 185 AD2d

341 [2d Dept., 1992]). Although it appears that petitioner was repeatedly

sent back for more exams until the basis for denial was pinpointed,

this Court is constrained to dismiss the petition because petitioner

failed to sustain his burden of proving as a matter of law that his

disability was the natural and proximate result of his line-of duty

accidents (see, Matter of Shedd v Board of Trustees, 177 AD2d 632

[2d Dept., 1991]; Matter of Gehm v Board of Trustees, 158 AD2d

687 [2d Dept., 1990]).

Petitioner appealed Justice Aronin's decision. In its January 12, 2004 decision, the Appellate Division, Second Department (Rodriguez v Board of Trustees, 3 AD3d 501, 501-502 [2004]), held that:

The issue of whether a firefighter is disabled is determined

by the Medical Board of the New York City Fire Department, Article

1-B Pension Fund (hereinafter the Medical Board). The determination

of the Medical Board is conclusive if it is supported by some credible

evidence and is not irrational (see Matter of Meyer v Board of Trustees

of NY City Fire Dept., Art I-B Pension Fund, 90 NY2d 139 [1997];

Matter of Drew v New York City Employees Retirement Sys., 305

AD2d 408 [2003]). Here, the medical findings do not sustain the

determination of the Medical Board. Accordingly, the determination

is not rational. The physicians who examined the petitioner did not

conclude that the tremors which he had been experiencing were

disabling and failed to sufficiently address the petitioner's contention [*4]

that the spinal injury which he received in the line of duty was the

proximate and natural cause of his disability entitling him to accident

disability retirement benefits as a matter of law (see generally Matter

of Canfora v Board of Trustees of Police Pension Fund of Police Dept.

of City of NY, Art. II, 60 NY2d 347, 352 [1983]). Accordingly, we

reverse the judgment and grant the petition to the extent of annulling

the findings of the Medical Board and remitting the matter to the

respondent Board of Trustees of the New York City Fire Department

(hereinafter the Board of Trustees), Article 1-B Pension Fund for new

medical reports and new findings by the Medical Board, and a new

determination by the Board of Trustees.

Dr. Raynor, in his January 17, 2006-report, opined, in his "Impression," that:

Imaging studies of the cervical and lumbar spines over a

period of approximately 10 years show principally bony degenerative

changes consistent with the patient's age. Changes consistent with

the patient's subjective complaints of pain were not observed.

As noted above there appeared to be significant functional overlay in

the present examination and the examination done in 1999. Based.

Upon the available objective evidence the patient does not appear to

have sufficient cervical and lumbar spine disease to prevent him from

performing his normal duties. His complaints are of a subjective

nature, namely pain. A sufficient anatomical justification of these

complaints and their degree is not present.

The Medical Board, on February 16, 2006, after reviewing the findings of Dr.

Raynor, referred petitioner to Dr. Daniel J. Feuer, their impartial neurological consultant. After examining petitioner on April 24, 2006, Dr. Feuer opined, in his "Impression," that:

The claimant is a fifty-four year old male whose present

neurological examination is remarkable for evidence of a mild

intention tremor of the upper extremities. There were no clinical

signs of Parkinsonism. The claimant has subjective tenderness

of the lumboscral spine, which is not supported by any objective

neurological deficit referable to the lumbosacral spine. Given the

strong family history of essential tremor, I believe that the claimant's [*5]

tremor syndrome is most consistent with that of benign essential

tremor.

The essential tremor in and of itself should not be disabling

in any situation other than activities which involve very fine dexterity

i.e. surgical procedures. The claimant should be able to work without

restriction as a firefighter given his essential tremor syndrome. I do

not believe the claimant's injury to the neck and back in 1997 in

anyway contributed to or aggravated his underlying benign essential

tremor.

Petitioner's application was again considered by the Medical Board on May 26, 2006. The Medical Board again denied petitioner's application for ADR and, in addition, denied the Fire Commissioner's application for ODR. The Board of Trustees, on July 24, 2006, reviewed petitioner's case and concurred with the Medical Board's findings.

In support of his demand for relief, petitioner summarizes the above discussed

procedural history of his ADR application. Petitioner concludes that: (1) the Board of Trustees failed to consider competent medical and other evidence that demonstrated that he is disabled by reason of his exacerbated back condition and that he is therefore entitled to ADR; (2) the action of the Board of Trustees was contrary to the competent evidence that established that petitioner sustained a line of duty injury and hence was not based on substantial evidence; (3) the Board of Trustees failed to apply the proper legal standard of disability applicable to ADR; and, (4) the Medical Board and/or the Board of Trustees failed to provide petitioner with a fair and reasonable opportunity to establish his entitlement to ADR by way of a notice of hearing, depriving him of due process.

Respondents, in opposition, review petitioner's history of accidents and his ADR application. Respondents assert that following the Appellate Division, Second Department's January 12, 2004 decision on petitioner's appeal, the Medical Board again considered petitioner's ADR application. The Medical Board referred petitioner back to Dr. Raynor, who concluded that petitioner "does not appear to have sufficient cervical and lumbar spine disease to prevent him from performing his normal duties," and to Dr. Feuer, who concluded that petitioner's condition should "not be disabling in any situation other than activities, which involve very fine dexterity i.e. surgical procedures [sic]," and that petitioner "should be able to work without restriction as a firefighter given his essential tremor." Thus, respondents conclude that: (1) petitioner has failed to establish that he is physically or mentally incapacitated for the performance of his duties as a firefighter; that any alleged incapacity is the natural and proximate result of an accident not caused by his own willful negligence; and that the accident occurred in the performance of his duties as a firefighter; (2) based upon the medical records submitted to the Medical Board, there was credible evidence to support its determination that petitioner was not disabled, either as the result of his benign essential tremor or his cervical or lumbar condition; (3) that it was neither arbitrary nor capricious for the Board of Trustees to resolve any conflicts in medical opinion by accepting the opinions of its own experts; (4) the Medical Board's determination is supported by credible evidence and is not arbitrary or capricious, and the Board of Trustees is justified in relying upon said determination; and, (5) petitioner is not [*6]entitled to a trial or hearing.

In reviewing a petition which seeks to overturn a determination of the Board of

Trustees regarding a petitioner's eligibility for disability retirement, the court must apply "a narrow standard of review" (Marzigliano v New York City Employees' Retirement Sys., 27 AD3d 748, 749 [2d Dept 2006]). Moreover, the Appellate Division, Second Department has, in numerous decisions, instructed:

The issue of whether a firefighter is disabled as a result of a

service-related accident is determined by the Medical Board of the

New York City Fire Department Pension Fund, Subchapter 2 (formerly

art 1-B) . . . Its determination that a firefighter is not disabled for

duty is conclusive if it is supported by some credible evidence and

is not irrational.

(Kuczinski v Board of Trustees of New York City Fire Department, 8 AD3d 283, 284 [2d Dept 2004]; Matter of Stack v Board of Trustees of New York City Fire Department, 38 AD3d 562 [2d Dept 2007]; Matter of Vastola v Board of Trustees of New York

City Fire Department; 37 AD3d 478 [2d Dept 2007]; Matter of Vidal v Board of Trustees of New York City Fire Department, 32 AD3d 399 [2d Dept 2006]). In an Article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks rational basis or is arbitrary or capricious. (Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]).

"[C]redible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered. . . . it must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Meyer v Board of Trustees of the New York City Fire Department, 90 NY2d 139, 147 [1997], rearg denied 90 NY2d 936 [1997]; accord Matter of Stack, 38 AD3d 562; Matter of Vastola, 37 AD3d 478). Ordinarily, a Medical Board's disability determination will not be disturbed if it is based upon substantial evidence (see Matter of Tobin v Steisel, 64 NY2d 254, 259 [1985]). "An articulated, rational, and fact-based medical opinion" constitutes "credible evidence" (Meyer, 90 NY2d at 148). Hence, the Medical Board's "detailed and fact-based report," "explaining the basis for its conclusion" constitutes "credible evidence"(id. at 152).

Further, if there is a difference in medical opinions with respect to petitioner's disability, such difference does not render the Medical Board's determination, nor the Board of Trustees' acceptance of that determination, arbitrary and capricious (see Manza v Malcolm, 44 AD2d 794 [1st Dept 1974]), since it is solely within the Medical Board's province to resolve any conflict between medical opinions (see, e.g., Kuczinski, 8 AD3d at 284; Matter of Vastola, 37 AD3d 478; Matter of Bartsch v Board of Trustees of New York City Fire Department, 142 AD2d 577 [2d Dept 1988]). "The courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board if the Medical Board's determination is supported by any credible evidence and is not irrational" (Ruzicka v Board of Trustees of New York City Fire Department, 283 AD2d 581, 581 [2d Dept 2001]; see also Borenstein, 88 NY2d at 761; Schwarzrock v Board of Trustees of New York City Fire Department, 238 AD2d 596, 598 [2d Dept 1997], lv denied 91 NY2d 803 [1997]). "Where, as here, the Medical Board . . . determines that an applicant is not disabled from performing firefighting duty due to an alleged injury or illness, the Board of Trustees . . . must accept that determination and deny the applicant's claim" (Schwarzrock, 238 [*7]AD2d at 596, citing Matter of Borenstein, 88 NY2d 756).

Further, the Appellate Division's determination on petitioner's prior appeal is binding upon the parties as the law of the case. It cannot be challenged in a subsequent appeal (see, e.g., Venigalla v Nori, 41 AD3d 725 [2d Dept 2007]. The Appellate Division's holding that appellate review of an issue has been waived due to issue determination in some prior appeal bars a party from arguing that the Supreme Court improperly determined its liability in a prior appeal (Fiorenti v Central Emergency Physicians, 39 AD3d 804 [2d Dept 2007]). The Supreme Court is bound by the law of the case as set down in the first appeal of the case (Fellin v Sahgal, 35 AD3d 800 [2d Dept 2006]; In re Oak Street Management, 20 AD3d 571 [2d Dept 2005], lv granted 5 NY3d 711 [2005], appeal withdrawn 6 NY3d 808 [2006]).

Thus, it must be recognized that the prior holding of the Appellate Division,

Second Department, in this matter is binding upon this Court. The Appellate Division unequivocally held (3 AD3d at 502) that the determination of the Medical Board was not rational, in that:

The physicians who examined the petitioner did not conclude that

the tremors which he had been experiencing were disabling and

failed to sufficiently address the petitioner's contention that the spinal

injury which he received in the line of duty was the proximate and

natural cause of his disability entitling him to accident disability

retirement benefits as a matter of law (see generally Matter of Canfora

v Board of Trustees of Police Pension Fund of City of NY, Art. II,

60 NY2d 347, 352 [1983]).

This Court may not rely upon the Medical Board and Board of Trustees findings that predated January 12, 2004 to support the July 24, 2006 ADR denial. Instead, this Court is constrained to review the findings made subsequent to the January 12, 2004 appellate decision.

A review of the proceedings following the Appellate Division remand reveals that the Medical Board referred the matter to Drs. Raynor and Feuer for reevaluation. Dr. Raynor's examination resulted in a determination that petitioner was not disabled as the result of cervical or lumbar spinal disease. Similarly, Dr. Feuer was of the opinion that petitioner's injury to his neck and back did not contribute to or aggravate his benign tremor and, moreover, that petitioner was not disabled from performing his duties as a firefighter by virtue of the tremor. A review of these reports establishes that both Dr. Raynor and Dr. Feuer rendered their opinions after a full examination of petitioner.

Accordingly, the Medical Board's determination that petitioner was not disabled is supported by substantial credible evidence. In so holding, it is significant to note that petitioner did not offer any medical evidence from his treating physicians, or from any other doctor, in support of his claim that either the condition of his spine or his benign tremor disabled him from performing his duties as a firefighter (see, e.g., Schwarzrock, 238 AD2d at 598 [there was no medical evidence that any line-of-duty accident precipitated or aggravated petitioner's neck and back conditions]; see also Inguanta v Board of Trustees of New York City Fire Department, 302 AD2d 527 [2d Dept 2003]). The Board of Trustees under the circumstances of this case did not have any evidence before it that indicated that petitioner was disabled, so that it was not even called upon to weigh conflicting medical opinions. Thus, the Court finds that petitioner's contention that the doctors relied upon by the Medical Board were not impartial is specious. It is [*8]reasonable for the Medical Board to decline to rely on medical reports based upon examinations conducted years ago.

Finally, given the clear law on the issue, this Court finds that it would be improper to hold a trial where conflicting medical evidence is presented regarding whether or not petitioner is entitled to accident disability retirement (Matter of Ramsey v City of New York, 8 AD3d 392 [2d Dept 2004]). As noted above, the Medical Board alone has the authority to weigh such evidence. The Medical Board's determination that petitioner has not established that he is permanently disabled is based upon credible evidence. The Board of Trustees' determination, in reliance upon the Medical Board's recommendation, is not arbitrary, capricious, unreasonable and unlawful.

Accordingly, it is

ORDERED, that petitioner's demand for relief is denied, and the petition is dismissed.

The foregoing constitutes the decision and order of this court.

ENTER

_________________________

HON. ARTHUR M. SCHACK

J. S. C.