Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: [*2]

PapersNumbered

Notice of Motion and Affidavits Annexed....................................1

Notice of Cross Motion and Answering Affidavits.......................2

Replying Affidavits......................................................................3

Exhibits......................................................................................4

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Petitioner Michael Mazziotti brought this petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to annul the actions of the respondents herein in refusing to award petitioner a retroactive World Trade Center Accident Disability Retirement Pension ("WTC-ADR") and declaring that decision arbitrary, capricious, unreasonable, unlawful, contrary to the purpose and intent of the disability pension laws and contrary to the intent of this Court and directing and ordering the respondents to award petitioner's WTC-ADR retroactive to one of the following dates: February 14, 2007, March 10, 2010, December 14, 2011, or January 11, 2012; or at the very least, ordering a remand of petitioner's application solely for reconsideration of the issue of a retroactive award. For the reasons set forth below, the petition is denied in its entirety.

The relevant facts are as follows. Petitioner Michael Mazziotti, an NYPD police officer, was one of the first responders at the World Trade Center on September 11, 2001 and was on site when the Towers were hit and eventually fell. In the months after, petitioner spent 175 tours digging and patrolling the immediate site of the World Trade Center disaster.

Starting in 2002, petitioner began to experience symptoms of Post Traumatic Stress Disorder ("PTSD"), including anxiety and panic attacks, as well as nightmares, flashbacks and frequent intrusive thoughts of the World Trade Center attacks and its aftermath. On or about September 2, 2002, petitioner retired from the department as he had begun to question his fitness for full duty based on these symptoms. This put an end to petitioner's 32 year career in which he was awarded 44 departmental citations for exemplary acts.

In April of 2003, petitioner underwent psychological testing at the World Trade Center Medical Monitoring and Treatment program and was noted to have symptoms of PTSD, depression and panic disorder. In October of 2005, petitioner returned to the World Trade Center Medical Monitoring and Treatment program and was evaluated and again diagnosed to be suffering from PTSD as well as major depressive disorder. Thereafter, petitioner began treating at the Long Island Occupational and Health Center ("LI Health Center") for his PTSD.

In September of 2006, petitioner applied for a World Trade Center Accident Disability Retirement Pension ("WTC-ADR") based on his PTSD, anxiety, depression and panic attacks. Additionally, as is customary, the Police Commissioner filed an Ordinary Disability Retirement ("ODR") on petitioner's behalf. On December 4, 2006, petitioner appeared before the Pension Fund's Medical Board, the first step in the two tier disability pension process. According to the Medical Board's minutes from that date, the Medical Board reviewed a World Trade Center Medical Monitoring Program Mental Health Questionnaire dated March 11, 2005; a number of progress notes from the LI Health Center; and a letter dated September 22, 2006, from Arthur Knour, PH.D., Director of the Psychological Evaluation Section, which noted that there was no [*3]psychological hold on petitioner's firearms. In the end, the Medical Board recommended not to approve petitioner's WTC-ADR or ODR application thereby implicitly finding that petitioner was not disabled.

On February 14, 2007, petitioner's case went before the Police Pension Fund's Board of Trustees ("Board of Trustees"). At that time, pursuant to Pension Fund Rules, petitioner submitted two additional letters by psychiatrist Steven Cole that were not considered previously by the Medical Board and his case was remanded back to the Medical Board based on new evidence. On December 17, 2007, the Medical Board reviewed petitioner's case for a second time and reaffirmed its previous decision and again recommended disapproval of petitioner's WTC-ADR and ODR applications.

On March 18, 2008, petitioner was approved for Social Security Disability ("SSD") benefits. It was the finding of the Social Security Administration that petitioner was impaired by "[m]ajor depression, a panic disorder, and a post-traumatic stress disorder" and that he had been under a disability from October 27, 2005. Thereafter, on May 14, 2008, petitioner's case was agin remanded by the Board of Trustees to the Medical Board based on the submission of new evidence. This time the Medical Board, in addition to the previous evidence provided, also reviewed a letter from Dr. Lynn Bernstein, a psychologist, which reviewed petitioner's history and a number of psychological tests as well as a letter from Minna Barrett, a psychologist, who treated petitioner in March of 2008 in a "specialized group program consisting of specific cognitive behavior protocol with other September 11, 2001 responders." In the end, the Medical Board again reaffirmed its prior decision and recommended disapproval of the petitioner WTC-ADR and ODR applications.

In October 2009, petitioner's case was again before the Board of Trustees. At that time, petitioner again submitted new medical evidence and his case was remanded, for a third time, back to the Medical Board based on new evidence. On December 14, 2009, petitioner's case was considered by the Medical Board and, for the fourth time, the Medical Board reaffirmed its prior decisions and recommended disapproval of petitioner's WTC-ADR and ODR.

Following the December 14, 2009 denial, petitioner's attorney wrote several letters to the Board of Trustees on petitioner's behalf addressing what he believed were numerous deficiencies with the Medical Board's handling of petitioner's application and requesting another remand. Specifically, petitioner's attorney expressed his concern that despite petitioner being deemed to be unfit for any type of gainful employment by the Social Security Administration for his psychological issues, the Medical Board continues to find no disability or even discuss the findings made by the Social Security Administration.

On March 10, 2010, the Board of Trustees in a meeting on the record, denied petitioner's request for another remand and denied petitioner's application for WTC-ADR and ODR in final. Petitioner received written notice of the determination by mail a few days later and subsequently filed an Article 78 proceeding challenging the denial (the "First Proceeding"). By decision/order dated May 2, 2011, the Honorable Justice Manuel Mendez found for the petitioner and remanded the case to the Board of Trustees for reconsideration of petitioner's application "in a fair and lawful manner" and for remand to the Medical Board. Specifically, Justice Mendez found that the Medical Board failed to consider all relevant medical evidence or clearly state the reasons for its determinations. [*4]

On June 8, 2011, the Board of Trustees remanded petitioner's case back to the Medical Board based on Justice Mendez's order. On remand, the New York City Law Department, in light of Justice Mendez's order, instructed that the Medical Board should: (1) "fully discuss and, if necessary, distinguish all medical evidence relating to causation, specifically address evidence submitted by petitioner that allegedly supports the contention that he is entitled to ADR, including, but not limited to, the objective testing result reports by his doctor"; (2) "address the findings of the Social Security Administration"; and (3) "issue a determination that incorporates, discusses all the available evidence, including evidence that comes to the conclusion and applicable, explain why the evidence supporting the Medical Board's determination is more persuasive than contrary evidence." Additionally, upon remand, petitioner again submitted new medical evidence, including three reports from his treating providers.

On September 26, 2011, petitioner's case was again considered by the Medical Board, who again recommended disapproval of petitioner's WTC-ADR and ODR applications. Like before, the Medical Board's minutes stated the various documents it reviewed in making its determination but did not consist of any substantial discussion articulating the grounds for its decision. Thereafter on December 14, 2011, the Board of Trustees denied petitioner's attorney's request for another remand to the Medical Board. On January 11, 2012, the Board of Trustees again denied petitioner's case in final. Thereafter, petitioner filed a second Article 78 proceeding challenging the respondents' determination (the "Second Proceeding").

On January 25, 2013, in the Second Proceeding, Justice Mendez again found for the petitioner and remanded the case to respondents for a legally sufficient review. Justice Mendez's decision states in pertinent part as follows:

[T]he respondents have failed to comply with the May 2, 2011 Decision and Order of this Court in Matter of Mazziotti v. Kelly, Index #108795/10 and overcome the World Trade Center presumption. Respondents misinterpret the WTC Disability Law when they claim that only medical evidence related to disability covering up to 90 days post-retirement should be considered and the medical evidence prepared and submitted on behalf of petitioner was done long after he was retired. The Medical Board's September 26, 2011 determination does not provide any details or affirmative, competent, credible evidence concerning its own conclusions and is legally deficient, arbitrary and capricious. The Board of Trustees determination on January 11, 2012, in reliance on the Medical Board's September 26, 2011 findings and the denial of petitioner's application for WTC based ADR after four prior remands, is arbitrary and capricious. (internal citations omitted).

Accordingly, Justice Mendez remanded the case back to the Medical Board for further reevaluation and determination and, thereafter, to the Board of Trustees for a further hearing and determination.

On June 24, 2013, petitioner's case was again considered by the Medical Board based on the same evidence that was presented on the prior review. This time, the Medical Board rescinded its prior determinations and recommended approval of petitioner's application for WTC-ADR and disapproval of the ODR application. The final diagnosis was PTSD and major depressive disorder. Thereafter, on September 11, 2013, the Board of Trustees adopted the Medical Board's recommendation and petitioner's retirement was reclassified as WTC-ADR. [*5]Thus, petitioner started to receive a WTC-ADR pension starting September 11, 2013.

Petitioner now brings the instant Article 78 proceeding seeking to annul and challenge the date upon which petitioner's WTC-ADR pension was awarded. Specifically, petitioner argues that denying him retroactive WTC-ADR benefits was arbitrary, capricious, unreasonable, unlawful and contrary to the intention of the Court.

On review of an Article 78 petition, "[t]he law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious." Goldstein v Lewis, 90 AD2d 748, 749 (1st Dep't 1982). "In applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis." Halperin v City of New Rochelle, 24 AD3d 768, 770 (2d Dep't 2005); see Pell v Board. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974) ("[r]ationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard"). "The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to facts." Pell, 34 NY2d at 231 (internal citations omitted).

In the present case, the court finds that respondents' decision to award petitioner a WTC-ADR pension prospectively from September 11, 2013 was reasonable. Administrative Code § 13-252.1(2)(b), provides that: "The NYCPPF board of trustees shall consider a reclassification of the member's retirement as an accidental disability retirement effective as of the date of such reclassification." Here, petitioner's retirement was reclassified from a regular service retirement to WTC-ADR retirement on September 11, 2013, when the Board of Trustees adopted the Medical Board's recommendation and granted petitioner's application for WTC-ADR. Thus, respondents' determination that petitioner's WTC-ADR pension was effective September 11, 2013, was in accordance with the explicit mandate in Administrative Code § 13-252.1(2)(b) that WTC-ADR awards be awarded prospectively beginning on the date of approval and is neither arbitrary, capricious, nor an abuse of discretion.

To the extent petitioner argues that this court, despite the above finding, has the authority to award retroactive benefits to petitioner in this instance, such contention is without merit. As an initial matter, the court is not persuaded by petitioner's contention that the holdings in Bitchatchi v. Board of Trustees, et al., 20 NY3d 268 (2012) and Dement v. Kelly, 97 AD3d 223 (1st Dept 2012), grant this court with the authority to award petitioner WTC-ADR retroactively. As petitioner recognizes, the main difference between Bitchatch, Dement and the instant action is that in both Bitchatchi and Dement, the threshold issue of whether the applicant was disabled was never in dispute and the only issue before the court was whether respondents had presented substantial evidence to overcome the WTC Law presumption that the applicant's disability was casually related to service related activity. Thus, the question before the court was one of substantial evidence, which is within the court's discretion to decide and once the court was able to find that there was not substantial evidence as a matter of law to overcome the presumption it was able to direct that WTC-ADR be awarded from the date the application was denied by the Board of Trustees. In the present case, on the contrary, petitioner was never found disabled by the Medical Board until after the Second Proceeding. Thus, to award petitioner WTC-ADR to [*6]the date of any of the Medical Board's prior recommendations to deny his WTC-ADR or ODR applications the court would have to make a finding that at a given point petitioner was disabled for full duty police work as a result of his WTC related psychological issues as a matter of law. This court simply cannot make such a determination as it is well settled that the threshold question of whether an applicant has the injury claimed and whether that injury incapacitates the applicant from the performance of duty is solely for the Medical Board to decide. See, e.g., Matter of Borenstein v. New York City Empl. Retirement Sys., 88 NY2d 756, 760 (1996). Thus, the holdings in Bitchatchi and Dement are unavailing to give the petitioner the relief he seeks herein.

Additionally, the court is not persuaded by petitioner's contention that the long held legal axiom that no party should be able to benefit from its own wrong doing invests this court with the authority to award petitioner retroactive benefits in this instance. Such legal principal is simply not applicable to the instant action. Indeed, while the court is highly sympathetic to petitioner's plight and in no way condones or encourages the actions herein demonstrated by the Medical Board or Board of Trustees, such sympathy does not grant the court the right to exceed its authority on an article 78 petition or to find contrary to clear statutory language that WTC-ADR benefits be awarded prospectively. Unfortunately, "[e]very so often, inflexible statutes enacted by the Legislature constrain administrative agencies and Judges to reach results that may be viewed as harsh and unjust." Matter of Southland Corp. v. New York State Liq. Auth., 181 AD2d 19, 20 (1st Dept 1992); see also Guzman v. New York City Empl. Retirement Sys., 45 NY2d 186 (1978) (recognizing that "[w]hile [following the retirement law as written] may at times seem harsh to a faithful employee or even harmful to the system itself, it provides a measure of certainty and security and tends to protect the vast majority of those who have contributed to the retirement plan").

Accordingly, based on the foregoing, the instant petition is denied in its entirety. This constitutes the decision and order of the court.

Dated:Enter: _____________________

May 1, 2014J.S.C.