Simon v. Garrison

In a proceeding pursuant to article 78 of the CPLR inter alia to annul a determination denying petitioner’s application for retirement on an accident disability pension, petitioner appeals from a [547] judgment of the Supreme 'Court, Kings County, dated August 21, 1967, which granted respondents’ motion for reargument and thereupon dismissed the petition. Judgment reversed, on the law, with $10 costs and disbursements, and proceedings remitted to the Special Term for (1) a hearing limited to the issue of whether petitioner told respondents’ examining physicians that he had previously injured his back either in military service, or while playing ball, or in an automobile accident in 1957 and (2) further proceedings not inconsistent herewith. In our opinion, petitioner’s affidavit denying a back injury sustained while in military service or while playing ball raises an issue of fact which should be determined by Special Term at a hearing (CPLR 7804, subd. [h]; Matter of Schwab v. McElligott, 282 N. Y. 182). Christ, Acting P. J., Brennan, Babin, Benjamin and Munder, JJ., concur.