The motion by petitioner for an order pursuant to C.P.L.R. Article 78, annulling and reversing the order of the Board of Trustees of the Police Department Article II Pension Fund (hereinafter "Board of Trustees") and declaring the Board of Trustees' action to be arbitrary, capricious, unreasonable and unlawful, or in the alternative, directing the Board of Trustees to either re-hear the factual issues raised by petitioner's claim or to grant petitioner the opportunity to present testimony before the Board of Trustees, is denied.

Petitioner, a September 11, 2001 first responder, and a member of the New York Police Department ("NYPD") since 1988, alleges that he was in the "immediate vicinity" of the loud explosion which caused the first World Trade Center tower to collapse. On March 31, 2006, [*2]petitioner submitted an application for retirement with a line of duty accident disability retirement ("ADR") allowance, claiming he lost portions of his hearing due to his proximity to the collapsed tower on September 11, 2001.

Immediately after September 11, 2001, petitioner sought treatment for painful and constant ear ringing, yet did not seek medical treatment again until April 28, 2005. From April 28, 2005 until the present, no fewer than five physicians and one audiologist have examined petitioner.^[FN1]

On September 10, 2008, the Board of Trustees retired petitioner, by tie vote (6-6), with Ordinary Disability Retirement ("ODR"). Petitioner then appealed the Board of Trustees' decision to retire petitioner with ODR, pursuant to C.P.L.R. Article 78, to the New York State Supreme Court, County of New York.

Judge Joan A. Madden of the New York State Supreme Court, County of New York, partially granted petitioner's application on July 21, 2009 and ordered, in pertinent part, that the Medical Board:

". . . [C]onduct a further evaluation of the petitioner's application for ADR with respect to the causation of petitioner's disability, and issue a determination on the subject application which delineates the medical conclusion and the evidence it finds that supports such conclusions, and upon issuance of its determination, and the Medical Board shall present such determination to the Board of Trustees. . ."

On April 21, 2010, the Medical Board reconsidered and reaffirmed its recommendation to the Board of Trustees that the Board of Trustees deny petitioner's ADR application. In concluding that petitioner's proximity to the collapsed towers did not cause hearing loss, the Medical Board relied exclusively on an April 6, 2010 consultation letter submitted by Dr. Marc Kramer, PhD, an NYPD Consultant in Audiology. According to this letter, Dr. Kramer reviewed his July 31, 2006 report on the magnitude of petitioner's hearing loss, and at least three (3) separate audiological reports (a December 23, 2005 evaluation by the League for the Hard of Hearing (LHH); an April 8, 2006 letter from Dr. Michael Gordon; and an April 7, 2007 letter from Dr. Richard Leinhardt). Dr. Kramer noted the "marked disparity among several assessments" and concluded, in relevant part, " . . . the etiology of his hearing loss is certainly not likely to be traumatic as a result of exposure to the events of September 11th, 2001, since traumatic hearing loss (i.e., acoustic trauma) is not known to be either progressive or fluctuating long after the [sic] such exposures."

On September 8, 2010, the Board of Trustees, after a tie vote (6-6), again retired petitioner with ODR. Pursuant to C.P.L.R. Article 78, petitioner then requested judicial intervention from this Court on December 16, 2010, arguing that the Board of Trustees either should retire petitioner with ADR or reconsider petitioner's claim for ADR after petitioner offers [*3]further factual testimony and evidence.

In C.P.L.R. Article 78 proceedings, "It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion [citations omitted].'" Matter of Edwin A. Pell v. Board of Education of Union Free School District, 34 NY2d 222 (1974). This court cannot, " substitute its own judgment for that of the agency. Even though the court might have decided differently were it in the agency's position, the court may not upset the agency's determination in the absence of a finding, not supported by this record, that the determination has no rational basis [citations omitted]." See Matter of Mid-State Management Corp. v. New York City Conciliation and Appeals Board, 112 AD2d 72 (1st Dept. 1985); Matter of Sullivan County Harness Racing Assoc., Inc. v. Robert A. Glasser, 30 NY2d 269 (1972).

However, where, as here, the Board of Trustees becomes deadlocked (6-6 tie vote) on the issue of whether the disabling condition is causally related to the service-related injuries, traditionally the application for ADR is denied, and the officer is retired with ODR. In the Matter of Edward Canfora v. Board of Trustees of the Police Pension Fund of the Police Department of the City of New York, 60 NY2d 347 (1983). If the Board of Trustees reaches a tie vote, a court may set aside the Board of Trustees' determination in a C.P.L.R. Article 78 proceeding "only if the courts conclude as a matter of law on the record that the disability was the natural and proximate cause of a service related accident." Id.

The Board of Trustees' decision must be upheld so long as any credible evidence supports its determination that petitioner did not suffer a line-of-duty accident that caused his disability. In the Matter of Robert G. Meyer v. Board of Trustees of the New York City Fire Department, 90 NY2d 139 (1997). "Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and further that it must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion." Id.

The Board of Trustees relied on credible evidence in denying petitioner ADR on September 8, 2010. The Medical Board's April 21, 2010 recommendation to the Board of Trustees relied on "evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered" by basing its recommendation on Dr. Marc Kramer's conclusion that "the etiology of his hearing loss is certainly not likely to be traumatic as a result of exposure to the events of September 11th, 2001." This Court cannot conclude, as a matter of law on the record, that petitioner's disability was a natural and proximate cause of his exposure to the September 11, 2001 World Trade Center attack. Accordingly, it is hereby,

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

Dated: July 25, 2011ENTER:

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J.S.C.