Josey v. New York City Police Department

Judgment, Supreme Court, New York County (Robert D. Lippmann, J.), entered December 4, 2006, which annulled the determination of respondent Police Pension Fund Board of Trustees denying petitioner’s application for accidental disability retirement (ADR) benefits, and directed respondent to grant petitioner ADR benefits, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed. Respondent’s determination was based on “some credible evidence” and was not arbitrary or capricious (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760-761 [1996]). There is no evidence in the record that supports petitioner’s belated claim that his injury occurred in the line of duty. We note that, upon finding that there was no credible evidence to support respondent’s determination, the court should have remanded the proceeding for further consideration (Matter of Perkins v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 86 AD2d 808 [1982]). Concur—Gonzalez, J.P., Nardelli, Buckley and Catterson, JJ.