Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition filed on July 15, 2024, under motion sequence number one, by petitioner Eric Kelly for an order pursuant to CPLR article 78: a) reviewing and annulling the action of the respondents herein in denying petitioner a Uniformed Sanitation 3/4 Accidental Disability pension pursuant to Retirement and Social Security Law § 605-b, and declaring said action to be arbitrary, capricious, unreasonable, and unlawful, and b) directing and ordering the respondents to retire [*2]petitioner with a Uniformed Sanitation 3/4 Accidental Disability pension retroactive to his retirement for Ordinary Disability, or, in the alternative, and c) remanding the matter to the respondents for an appropriate review by a newly composed Medical Board.

By same petition, petitioner also seeks an order pursuant to CPLR 2307 (a) directing the respondents herein to serve and file upon the date hereof a) all reports, recommendations, certificates, and all other documents submitted to the New York City Employees' Retirement System in connection with the petitioner's disability retirement application, b) copies of the minutes of each meeting of said Medical Board and Board of Trustees wherein the Medical Board or Board of Trustees considered, discussed, or acted upon petitioner's retirement application, and c) copies of all medical records, reports or notes relating to petitioner which are on file with the NYCERS and the DSNY Medical Division.

The petition is opposed.

Exhibits A-S

Appendixes A-B

Exhibits A-M, N pt. 1, N pt. 2, O-KK

Appendix 1

Appendix C

On July 15, 2024, petitioner Eric Kelly (hereinafter "the petitioner" or "Kelly") commenced the instant CPLR article 78 proceedings against the New York City Employees' Retirement System (hereinafter "NYCERS") by electronically filing a notice of petition, verified petition, nineteen exhibits labeled A through S (hereinafter "the commencement papers") with the Kings County Clerk's office (hereinafter "KCCO"). On December 2, 2024, the petitioner filed a memorandum of law and two annexed appendixes labeled A and B.

On March 12, 2025, NYCERS filed its verified answer with thirty-nine annexed exhibits labeled A through KK and a memorandum of law with one appendix labeled 1. The verified answer contains eighty-eight allegations of fact, including four defenses.

Kelly's verified petition alleges the following salient facts. On October 11, 2011, Kelly was appointed to the uniformed force of the Department of Sanitation of the City of New York (hereinafter DSNY) and served continuously as a member until his disability retirement in 2023. Prior to his appointment with the DSNY, Kelly passed all physical and mental examinations administered by the DSNY that demonstrated petitioner to be both physically and mentally fit to perform full duties as a sanitation worker or supervisor. During his employment, Kelly was a [*3]member of the NYCERS Pension Fund and, as a member, Kelly made all contributions thereto as required by law, pursuant to New York City Administrative Code § 13-104.

On August 9, 2016, Kelly, while in city-service suffered severe line-of-duty injuries to his head, neck, left upper extremity, and right knee, inter alia, when his motorcycle was struck by another vehicle (hereinafter "the 2016 incident"). Kelly was wearing his helmet and operating his vehicle safely when another vehicle ran a stop sign causing a collision. After the 2016 incident, Kelly was kept on line-of-duty injury (hereinafter "LODI") medical leave until his disability retirement in 2023 by the DSNY Medical Division. Kelly also received continuous medical and psychiatric treatment after the 2016 incident.

On July 24, 2017, Kelly filed an application for Accidental Disability Retirement (hereinafter "ADR") with NYCERS, pursuant to NY Retirement and Social Security Law (hereinafter "RSSL") § 605-b, on the basis that he is permanently disabled as the result of an accidental injury suffered in uniformed sanitation service in the 2016 incident.

Kelly underwent a series of interviews and examination in connection with his 2017 ADR application. On May 29, 2018, the NYCERS Medical Board (hereinafter "the Medical Board"), interviewed and examined Kelly, reviewed Kelly's entire medical history and conducted an interview and physical examination, but deferred rendering a decision on his ADR application. On October 23, 2018, the Medical Board again interviewed and examined Kelly. The Medical Board again deferred rendering a decision on his ADR application and ordered Kelly to appear for a consultation with their neuropsychiatrist. On September 18, 2019, Kelly was interviewed by the Medical Board's clinical neuropsychologist, Lauren S. Caruso, Ph.D. The Medical Board recommended denial of petitioner's ADR application after reviewing the neuropsychologist's report. After the denial, Kelly remained on LODI sick leave.

On October 6, 2020, Kelly submitted a new application for ADR based on the 2016 incident. In a letter dated September 30, 2020, Kelly was notified by DSNY of a proposed termination pursuant to NY Civil Service Law § 73 due to his medical leave absence since the 2016 incident. In response, Kelly's attorney requested that Kelly not be terminated pending a final determination by NYCERS on his disability application. DSNY notified him that they would apply for Ordinary Disability Retirement (hereinafter referred to as "ODR") on his behalf with NYCERS. On March 28, 2022, the Medical Board considered petitioner's ADR application and the ODR application submitted by the DSNY and denied both. However, on August 2, 2023, petitioner was again interviewed by the Medical Board's clinical neuropsychologist, Lauren S. Caruso, Ph.D., at the Medical Board's request. On September 27, 2023, the Medical Board again considered petitioner's ADR application and the ODR application submitted by the DSNY. The Medical Board again denied his ADR application, but approved the DSNY ODR application, finally admitting that petitioner is disabled with a diagnosis of neuropsychological disorder. In a letter dated November 17, 2023, Kelly was notified by NYCERS that he was approved for ODR and that his case would be presented to the Board of Trustees for a resolution in the future.

On December 15, 2023, Kelly was awarded Social Security Disability Benefits, finding him disabled from performing his job as a sanitation worker since the 2016 incident. In the fully favorable decision, the administrative law judge found Kelly to be suffering from the following severe impairments: degenerative disc disease of the lumbar and cervical spine, status post-left-hand fracture, traumatic brain injury, major cognitive disorder, depressive disorder, and post-traumatic stress disorder (PTSD).

On January 8, 2024, petitioner submitted a packet of updated medical records to NYCERS for the Medical Board's consideration, including doctors' reports, and the fully favorable decision from the Social Security Administration. However, upon information and belief, NYCERS never conveyed petitioner's January 8, 2024, evidentiary submissions to the Medical Board for consideration.

On March 14, 2024, the Board of Trustees voted to retire Kelly with ODR. Kelly was notified of the Board of Trustees' decision in a letter dated March 15, 2024. Kelly's ODR provides him with a taxable pension of 33 percent of his final average salary, which is substantially less than the tax-free pension of 75 percent of his final average salary to which he is rightfully entitled under ADR, pursuant to RSSL § 605-b.

Kelly should have been granted ADR because the injuries stemming from the 2016 incident were the result of an accident while he was in service as a uniformed sanitation worker. DSNY considered the 2016 incident LODI and carried him as such until his date of his retirement for ODR.

Respondents' denial of petitioner's ADR application is arbitrary, capricious, unlawful, inhumane, contrary to the legislative intent of the statute to protect public employees injured in the line-of-duty, as well as the provisions of the Constitution, statutes, laws ordinances, rules, and regulations applicable to these circumstances. The action herein complained of is final as to petitioner and petitioner has no other adequate remedy at law.

By short form order dated March 20, 2025, the Court isolated the matter for oral argument to April 30, 2025.

By short form order dated April 30, 2025, the Court directed both sides to file a memorandum of law by May 30, 2025, on the discrete issue of whether the Second Department has held that a petitioner may be considered in service in assessing eligibility of ADR during a lunch break.

By short form order dated August 15, 2025, the Court isolated the matter for further argument to September 26, 2025. On September 26, 2025, the Court took argument and reserved decision.

The petitioner's commencement papers consist of a notice of petition, verified petition, nineteen exhibits labeled A through S, a memorandum of law, and two additional annexed appendixes labeled appendix A and appendix B.

The petitioner's nineteen exhibits labeled A through S are as follows. Exhibit A is labeled as 8/19/16 injury documentation and consists of five pages, the first of which is denominated as The City of New York Department of Sanitation, Unusual Occurrence Report and includes a Police Accident Report. Exhibit B is labeled 2/7/20 DSNY Medical leave documentation. Exhibit C is labeled 5/29/18 Medical Board's minutes and consists of six pages denominated as Medical Board Report Privileged and Confidential. Exhibit D is labeled 10/23/18 Medical Board minutes and consists of six pages. Exhibit E is labeled 9/18/19 IME report, Dr. Caruso and consists of twelve pages denominated as Neuropsychological Consultation. Exhibit F is labeled 11/19/19 Medical Board minutes and consists of four pages. Exhibit G is labeled Petitioner's 10/6/20 submissions to NYCERS, various dates and consists of [*4]four-hundred-ninety pages. Exhibit H is labeled 9/30/20 DSNY proposed termination letter and consists of one page. Exhibit I is labeled 10.13.20 Petitioner's letter to DSNY and consists of two pages. Exhibit J is labeled 10.26.20 email from DSNY and consists of one page. Exhibit K is labeled 11/5/21 letter from NYCERS and consists of one page. Exhibit L is labeled 3/28/22 Medical Board minutes and consists of eleven pages and is denominated as Medical Board Report Privileged and Confidential. Exhibit M is labeled 8/30/22 narrative report, Dr. Janoson and consists of twelve pages on Manhasset Psychology PC letterhead with the subject Eric Kelly Psychological Evaluation. Exhibit N is labeled 8.2.23 IME report, Dr. Caruso and consists of twelve pages. Exhibit O is labeled 9/27/23 Medical Board minutes and consists of ten pages, denominated as For Your Information: Medical Board Report Enclosed. Exhibit P is labeled 11.17.23 letter from NYCERS and consists of one page. Exhibit Q is labeled 12/15/23 Social Security Favorable Decision and consists of fourteen pages and is denominated as Notice of Decision — Fully Favorable. Exhibit R is labeled 1/8/24 submissions to NYCERS, various dates and consists of thirty-nine pages. Exhibit S is labeled 3/15/24 NYCERS written notification of denial and consists of three pages.

Appendix A is labeled Appendix A - Matter of LaBella v NYCERS, 473/2019 and consists of fifty-eight pages, which include a notice of entry, an order under index no. 473/2019, a transcript of proceedings, and a document denominated as a neuropsychological consultation. Appendix B is labeled Appendix B - Matter of D'Avolio v Nigro, 17849/2014 and consists of seventeen pages, which include Matter of D'Avolio v. Nigro, 17849-2014 in the New York Law Journal and a document denominated as Confidential Subchapter 2 Medical Board(s)' Recommendation(s) on City of New York, Fire Department letterhead.

The NYCERS respondents' answering papers consist of an answer in special proceeding and thirty-nine exhibits labeled A through M, N part 1, N part 2, O through DD, EE part 1, EE part 2, FF though KK, a memorandum of law in opposition to the verified petition, and one additional annexed appendix labeled appendix 1.

The respondents' thirty-nine exhibits labeled A through M, N part 1, N part 2, O through DD, EE part 1, EE part 2, FF though KK are as follows. Exhibit A is labeled as NYCERS Application. Exhibit B is labeled DSNY Unusual Incident Report. Exhibit C is labeled 2017 ADR Application. Exhibit D is labeled Correspondence re 2017 ADR Application. Exhibit E is labeled Additional Supporting Documentation. Exhibit F is labeled May 29, 2018 Med Bd Report. Exhibit G is labeled Additional Docs reviewed 5.29.18. Exhibit H is labeled Medical Records 5.29.18. Exhibit I is labeled Correspondence After 5.29.18. Exhibit J is labeled October 23, 2018 Med Bd Report. Exhibit K is labeled Medical Records 10.23.18. Exhibit L is labeled 11.08.18 NYCERS Letter. Exhibit M is labeled November 19, 2019 Med Bd Report. Exhibit N, part 1 is labeled Medical Records 11.19.19 - part 1. Exhibit N, part 2 is labeled Medical Records 11.19.19 - part 2. Exhibit O is labeled December 6, 2019 NYCERS Letter. Exhibit P is labeled February 3, 2020 Letter. Exhibit Q is labeled February 13, 2020 BOT Book and Minutes. Exhibit R is labeled 2020 ADR Application and Correspondence. Exhibit S is labeled 2021 ODR Application. Exhibit T is labeled March 10, 2022 NYCERS Correspondence. Exhibit U is labeled March 28, 2022 Med Bd Report. Exhibit V is labeled Docs reviewed 3.28.22. Exhibit W is labeled Medical Records 3.28.22. Exhibit X is labeled April 27, 2022 NYCERS Letter. Exhibit Y is labeled May 16, 2022 NYCERS Letter. Exhibit Z is labeled February 9, 2023 BOT Book and Minutes. Exhibit AA is labeled February 22, 2023 Med Bd Report. Exhibit BB is labeled Medical Records 2.22.23. Exhibit CC is labeled July 3, 2023 [*5]NYCERS Letter and Caruso Report. Exhibit DD is labeled September 27, 2023 Med Bd Report. Exhibit EE, part 1 is labeled Additional Medical Records - part 1. Exhibit EE, part 2 is labeled Additional Medical Records - part 2. Exhibit FF is labeled November 17, 2023 NYCERS Letters re Applications. Exhibit GG is labeled January 11, 2024 BOT Book and Minutes and Related Correspondence. Exhibit HH is labeled January 8, 2024 Records. Exhibit II is labeled January 2024 Correspondence. Exhibit JJ is labeled March 14, 2024 BOT Book and Minutes. Exhibit KK is labeled March 15, 2024 Final Determination.

Additionally, petitioner filed a memorandum of law in reply.

Additional motion papers include the parties' submissions pursuant to the Court's order dated April 25, 2025. Petitioner filed a supplemental memorandum of law, an annexed appendix labeled Petitioner's Appendix C, and a transcript of proceedings from April 30, 2025. Appendix C is an affidavit by the petitioner Eric Kelly, dated May 30, 2025. Respondent filed a supplemental memorandum of law.

"In a proceeding under CPLR Article 78, judicial review of an administrative agency's determination is limited in scope to determining whether the challenged agency decision had a rational basis" (see Pell v Bd. of Educ., 34 NY2d 222, 230-31 [1974]).

"The Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) determines whether a member applying for accidental disability retirement benefits is disabled" (Matter v Vargas v New York City Employees' Retirement Sys., 95 AD3d 1345, 1346 [2d Dept 2012], citing Administrative Code of City of NY § 13-167 [b]; Matter of Cariello v New York City Employees' Retirement Sys., 76 Misc 3d 1223[A], 2022 NY Slip Op 51028[U], *5 [Sup Ct, Kings County 2022]). "The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) is bound by the Medical Board's determination as to whether an applicant is disabled" (Matter v Vargas v New York City Employees' Retirement Sys., 95 AD3d 1345, 1346 [2d Dept 2012]. "The Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational" (id.).

"If the Medical Board concludes that the member is disabled, it must further determine whether the disability is 'a natural and proximate result of an accidental injury received in such city-service' and certify its recommendation on this issue to the Board of Trustees, the body ultimately responsible for retiring the pension fund member and determining the issue of service-related causation" (Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144 [1997], citing Administrative Code of NY §§ 13-353, 13-323 [b]; see Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, 760 [1976]).

"The Board of Trustees must then make its own evaluation as to the Medical Board's recommendation regarding causation" (Matter of Suppan v New York City Employees' Retirement Sys., 37 AD3d 474, 475 [2d Dept 2007]; see Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 145-46 [1997]. "The determination of the Board of Trustees and the Medical Board is conclusive if it is not irrational, arbitrary, or capricious" (Matter of Suppan v New York City Employees' Retirement Sys., 37 AD3d 474, 475 [2d Dept 2007]).

RSSL § 605-b, which governs accidental disability retirement for DSNY employees, [*6]provides as follows:

"b. 1. A New York city uniformed sanitation member who, on or after the effective date of this section, is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service while actually a member of NYCERS shall be retired for accidental disability. Such retirement shall be effective as of the date approved by the board of trustees of NYCERS." (RSSL § 605-b [b] [1]

In the context of New York's public retirement systems, an applicant for a disability pension bears "the burden of establishing, as a matter of law, that a causal relationship exists between the service-related accident and the disability and there is no presumption in his or her favor which the Board of Trustees must overcome" (Matter of Connelly v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 237 AD2d 597, 602 [2d Dept 1997] [internal citations omitted]; Matter of Halloran v NYC Employees' Retirement Sys., 172 AD3d 715, 715-716 [2d Dept 2019]).

"The Supreme Court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the determination or whether it is arbitrary and capricious" (Matter of Halloran v NYC Employees; Retirement Sys., 172 AD3d 715, 716-717 [2d Dept 2019], citing Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; see Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 NY2d 222, 230 [1974]; see Matter of Clark v New York State Div. of Hous. & Community Renewal, 193 AD3d 726, 727 [2d Dept 2021]). "This is true even where the court would have reached a different result" (Matter of Halloran v NYC Employees; Retirement Sys., 172 AD3d 715, 716-717 [2d Dept 2019]).

Here, it is undisputed that the 2016 incident resulting in petitioner's injury occurred on his personal motorcycle during a lunch break. The petitioner contends that the 2016 incident was a qualifying work-related injury, and petitioner is entitled to a judgment reviewing and annulling respondent's denial of performance-of-duty disability retirement allowance. Meanwhile, the respondent contends that the petitioner is not eligible for ADR based on the 2016 incident because it did not occur in the performance of petitioner's sanitation service, but rather on his personal time during his personal meal break. The respondent contends that the Medical Board rationally and reasonably found that the petitioner was not entitled to ADR and that the Board of Trustees acted rationally and reasonably in denying petitioner's application for ADR based on findings supported by substantial evidence.

By short form order dated April 30, 2025, the Court directed both sides to file a memorandum of law on the discrete issue of whether the Appellate Division Second Department has held that a petitioner may be considered in service in assessing eligibility of ADR during a lunch break. Petitioner filed a supplemental memorandum of law and an affidavit by the petitioner Eric Kelly in support of its position. Respondent filed a supplemental memorandum of law and asked the Court to strike the petitioner's affidavit.

The affidavit which the petitioner wanted struck was by Eric Kelly. It provides as follows. On the day of the 2016 incident Kelly asked his supervisor Devon Graham (hereinafter "sanitation supervisor" or "Graham") if he could go to lunch. The sanitation supervisor allowed Kelly to go to lunch but instructed Kelly to return to the garage immediately after he retrieved [*7]the food and to eat at the garage, due to volume of work that needed to be done. Normally, DSNY is in the custom and practice of providing a "house truck" for the garage utility worker to use under these circumstances, but it was not available; therefore, Kelly used his personal vehicle. After leaving the garage at 8:15 p.m., Kelly picked up the food he ordered and suffered a motor vehicle accident on the way back to the garage, approximately seven minutes later. The affidavit is sworn to and notarized with a date of May 30, 2025. Petitioner's counsel contends that under these circumstances, the lunch period was under the control of the employer and that there is no dispute that the way he took his lunch break was at the convenience of his employers.

Respondent's counsel contends the affidavit was not provided as part of the petitioner's submission before NYCERS or the Medical Board. During oral argument, counsel referred to exhibit B, denominated as an unusual occurrence report, that was part of the administrative record. According to the unusual occurrence report, Graham had no knowledge of S/W Kelly taking his personal motorcycle and leaving the garage.^[FN1] The petitioner's affidavit contradicts the contention in the unusual occurrence report. Moreover, respondent's counsel argues that even if the petitioner's affidavit was accurate and admissible, it would still not be arbitrary and capricious for NYCERS to have found the petitioner not eligible for ADR.

In an Article 78 proceeding, "[j]udicial review of administrative determinations is confined to the 'facts and record adduced before the agency'" Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000], quoting Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757 [1st Dept 1982]; Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Veteri v Zoning Bd. of Appeals of the Town of Kent, 202 AD3d 975, 979 [2d Dept 2022]). Although the Court has discretion to consider additional pertinent sworn statements, here the Court finds that the petitioner's affidavit ultimately neither adds anything nor subtracts anything from the record.

Under RSSL § 605-b, a sanitation member qualifies for ADR if the disabling injury was "sustained in the performance of such uniformed sanitation service" (RSSL § 605-b [b] [1]). The Court may not set aside the Board of Trustees' denial of accidental retirement "[u]nless it can be determined as a matter of law on the record that the disability was the natural and proximate cause of a service-related accident" (Matter of Walsh v Scopetta, 18 NY3d 850, 852 [2011], quoting 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]).

"Resolution of the threshold issue of whether [a] petitioner was in service at the time that his [or her] injury occurred turns on whether he [or she] was performing job duties at the time of the injury" (Pileggi v Dinapoli, 221 AD3d 1157, 1157 [2d Dept 2023]; see Matter of Arroyo v DiNapoli, 195 AD3d 1290, 1291 [3d Dept 2021]; see Rajcoomar v New York State Comptroller, 159 AD3d 1323, 1324 [3d Dept 2018]; see Hoehn v New York State Comptroller, 122 AD3d 984, 985 [3d Dept 2014])^[FN2] . In determining whether an individual was "engaged in a personal [*8]activity rather than performing work duties at the time when the incident occurred" (Pileggi v Dinapoli, 221 AD3d 1157, 1158 [3d Dept 2023]), courts consider whether the record supports respondent's finding that the individual "was not directed or asked to do so by her supervisor or as part of her job duties" (id.; compare Matter of Arroyo v DiNapoli, 195 AD3d 1290, 1291-1292 [3d Dept 2021] ["by going out to pick up a breakfast order for the precinct at the behest of her supervisor, petitioner was performing a work duty rather than engaged in a personal activity"]).

The Third Department has upheld ADR denials where an individual was injured during a meal break (see Matter of Economico v New York State & Police & Fire Retirement Sys., 7 AD3d 913, 914 [3d Dept 2004]; see Matter of Marino v Regan, 117 AD2d 845, 846 [3d Dept 1986]). In Matter of Economico, the Court found that an on-duty, uniformed police officer, receiving compensation and required to respond to calls and emergency situations was not in service at the time of his car accident, which occurred during his lunch break (Matter of Economico v New York State & Police & Fire Retirement Sys., 7 AD3d 913, 914 [3d Dept 2004]). The police officer had taken his own personal vehicle and cellular phone, instead of those owned by his employer (id.). Further, he did not receive calls or respond to any emergency while on the lunch break (id.). "In light of this, and the fact that petitioner was engaged in a personal activity rather than performing work duties at the time of the accident," the Court found "that substantial evidence supported the denial of his application on the basis that he was not in service at the time of the accident" (id.). In Matter of Marino, the Court indicated that the "[c]laimant was on her 30-minute lunch period when injured, clearly not in service or 'engaged in the performance of [her job] duties" (Matter of Marino v Regan, 117 AD2d 845, 846 [3d Dept 1986]). As such, the Court found that the denial of the application for accidental disability retirement benefits was supported by substantial evidence in the record and must be confirmed (id.).

In the case at bar, the Court finds that there was a rational basis for the determination that the 2016 incident occurred during a personal lunch break and not in the performance of petitioner's assigned sanitation service duties nor at the behest of Kelly's supervisor. Therefore, the denial of ADR is supported by substantial evidence and is neither arbitrary nor capricious. The Medical Board rationally and reasonably found that the petitioner was not entitled to ADR and the Board of Trustees acted rationally and reasonably in denying petitioner's application for ADR based on findings supported by substantial evidence.

The branch of the petition filed on July 15, 2024 by petitioner Eric Kelly for an order pursuant to CPLR article 78 reviewing and annulling the action of the respondents herein in denying petitioner a Uniformed Sanitation 3/4 Accidental Disability pension pursuant to Retirement and Social Security Law § 605-b, and declaring said action to be arbitrary, capricious, unreasonable, and unlawful is denied.

The branch of the petition filed on July 15, 2024, by petitioner Eric Kelly for an order pursuant to CPLR article 78 directing and ordering the respondents to retire petitioner with a [*9]Uniformed Sanitation 3/4 Accidental Disability pension retroactive to his retirement for Ordinary Disability is denied.

The branch of the petition filed on July 15, 2025, by petitioner Eric Kelley for an order pursuant to CPLR article 78 in the alternative remanding the matter to the respondents for an appropriate review by a newly composed Medical Board is denied.

The petition is dismissed.

The foregoing constitutes the decision and order of this Court.