The motion by petitioner for an order pursuant to C.P.L.R Article 78, annulling the respondents' decision to deny petitioner's request to amend his accident disability retirement application pursuant to the City of New York Administrative Code §13-252 and General Municipal Law §207-k (the Heart Bill), to include a line of duty related heart condition on the ground that the respondents' actions were arbitrary, capricious and an abuse of discretion is denied. Petitioner's further request to annul respondents' decision, on the ground that court intervention is again warranted and respondents' actions on remand are legally deficient because petitioner's arguments have not been refuted and respondents' determination is contrary to the purpose and intent of the pension laws and breaches the duties owed by the pension fund to its members is denied and the petition is dismissed.

Petitioner asserts that he is a retired member of the New York Police Department (NYPD) after twenty years of service. Petitioner asserts that he worked the majority of his [*2]decorated career as a Detective in the Emergency Services Unit, participated in the World Trade Center rescue recovery and clean-up efforts as well as the Hurricane Katrina rescue and recovery and relief efforts.

Petitioner elected to retire from service on or about July 18, 2006 after submitting a line of duty disability pension (ADR) application for benefits related to multiple spinal injuries he suffered on the job on or about July 11, 2006. In addition, Police Commissioner Raymond Kelly submitted an application on behalf of petitioner for ordinary disability retirement (ODR) benefits. There was no mention of a heart condition, let alone a disabling one, on petitioner's original application. Petitioner's application was still pending when he suffered a heart attack on September 18, 2007. Petitioner then submitted a request to amend his application to include a disabling heart condition that existed while he was still an active and paid member of the NYPD.

Prior to petitioner's heart attack, on August 15, 2006, the Police Pension Fund Medical Board (Medical Board) considered petitioner's ADR and the Police Commissioner's ODR application. The Medical Board interviewed and examined petitioner and reviewed numerous reports and unanimously recommended denial of both the ADR and ODR applications. On October 11, 2006, the Board of Trustees reviewed the ADR application and remanded it back to the Medical Board. A second review by the Medical Board was held on January 30, 2007 where, again, the Medical Board interviewed and examined the petitioner, various notes and MRI's. None of the evidence submitted disclosed anything about a heart condition that existed pre-retirement. Again, the Medical Board unanimously recommended denial of petitioner's ADR and ODR applications. On July 11,2007, for a second time, the Board of Trustees remanded petitioner's applications back to the Medical Board.

On April 1, 2008, several months after petitioner's heart attack, the Medical Board reviewed petitioner's ADR and ODR applications for a third and final time. Again, the Medical Board interviewed and examined petitioner and reviewed any new notes submitted. Specifically, the Medical Board reviewed a report from petitioner's successful balloon angioplasty with stent. The report also revealed petitioner had no cardiac history but did have a family history of coronary artery disease. After reviewing these records, the Medical Board for a third time unanimously recommended denial of both the ADR and ODR applications.

On August 6, 2008, petitioner sent a letter to the Board of Trustees requesting to amend his ADR application to include his heart condition so he could be considered for a disability pension under General Municipal Law §207-k (the Heart Bill). On August 13, 2008, the Board of Trustees reviewed the ADR application for petitioner's orthopedic condition and request to amend the application. Carolyn Wolpert, an attorney from the NYC Law Department provided an opinion as to whether or not the application should be permitted to be amended. Ms. Wolpert reviewed a letter from petitioner's attorney which stated that the heart attack had occurred fourteen months after petitioner's retirement. Based on the letter from petitioner's attorney combined with evidence showing that petitioner's heart attack occurred fourteen months after his retirement as well as the fact that there was no prior cardiac history, Ms. Wolpert did not recommend allowing the application to be amended. Subsequently, the Board of Trustees denied petitioner's request to amend the application and request to remand the application back to the [*3]Medical Board for consideration and denied the application for ADR.

After having his application reviewed numerous times, petitioner commenced his first Article 78 proceeding on December 18, 2009 challenging the Board of Trustees' denial of his requests to amend his ADR application to include a heart condition under the Heart Bill. In his June 12, 2009 decision and order, the Honorable Edward H. Lehner remanded petitioner's application back to the Board of Trustees. In its decision, the court did not reach the merits of the Article 78 petition and ordered the Board of Trustees to provide reasons on the record for its decision. Pursuant to the court's decision and order from June 12, 2009, the rehearing of petitioner's request to amend his ADR application to include a heart condition was held on November 9, 2009. Karen J. Seeman, attorney from the NYC Law Department and counsel to the Police Pension Fund (PPF) informed the Board of Trustees of the June 12, 2009 decision and order and reiterated her August 13, 2009 recommendation to the Board of Trustees to deny petitioner's request to amend the ADR application. Petitioner's application was subsequently denied.

On or about March 10, 2010, petitioner commenced the instant Article 78 proceeding challenging the Board of Trustees' denial of his request to amend his ADR application to include his heart condition under the Heart Bill. Petitioner argues that respondent's actions were arbitrary, capricious and an abuse of discretion; that court intervention was originally warranted and is now again warranted and that respondents' actions on remand are legally deficient because petitioner's arguments have not been refuted and its determination is contrary to the purpose and intent of the pension laws and breaches the duties owed by the pension fund to its members.

Pursuant to General Municipal Law §207-k, " any condition of impairment of health caused by diseases of the heart, resulting in total or partial disability or death to a paid member of the uniformed force of a paid police department shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Petitioner's first allegation that respondents' actions were arbitrary, capricious and an abuse of discretion are unfounded. Petitioner had more than one opportunity for his application to be reviewed by both the Medical Board and Board of Trustees. The Medical Board and Board of Trustees based their decisions on records and letters submitted to them, neither of which contained any evidence that petitioner suffered from a heart condition, let alone a debilitating heart condition, during his time as a paid New York City police officer. In addition, there is no evidence of any type of heart condition or ailments pertaining to his heart listed on petitioner's original ADR application. Attempting to find a nexus between petitioner's heart attack fourteen months after his retirement and job related stress is too speculative. To extend the Heart Bill to all those who had heart disabilities after retirement would be overly broad and would open the floodgates to a massive wave of futile claims that do not occur while being paid as a police officer or firefighter.

Petitioner next alleges that court intervention was originally warranted and is again now warranted and that respondents' actions on remand are legally deficient because petitioner's [*4]arguments have not been refuted and respondents' determination is contrary to the purpose and intent of the pension laws and breaches the duties owed by the pension fund to its members. These allegations are equally unfounded. Petitioner had ample opportunities for his application to be reviewed resulting in numerous recommendations for its denial. Although the purpose and intent of the Heart Bill is to "protect police officers and firefighters whose work involves extraordinary job stress the petitioner must be a paid member of the police force and not one that is already retired when his heart condition becomes disabling." Uniformed Firefighters Ass'n, Local 94 v. Beekman, 52 NY2d 463, 472-73 (1981). Petitioner submitted no evidence to show that his heart attack was related to anything he had done during the time of his paid employment. In addition, petitioner had numerous opportunities to submit new evidence that would show a connection between his heart attack and work related stress for both his ADR application and ODR application.

Moreover, petitioner's many references to New York City Administrative Code § 13-252.1, which governs retirement for accident disability for members of the Police Pension Fund involved in the September 11th Word Trade Center (WTC) rescue and recovery efforts, does little if anything to help his cause. If petitioner wanted to file for benefits under §13-251.1, he could have done so. Instead, he chose to file his application under General Municipal Law §207-k, the Heart Bill, which has different presumptive standards not comparable to the WTC Law.

This court finds that petitioner has not demonstrated that respondents acted in an arbitrary and capricious manner in denying petitioner's request to amend his ADR application.

Accordingly, it is hereby

ADJUDGED that the petition is denied and proceeding is dismissed, without costs and disbursements to the respondents

Dated: August 4, 2010

ENTER:

______________________________________________

J.S.C.