Gabos v. Codd

Judgment, Supreme Court, New York County, entered September 20, 1977, denying petitioner’s motion in an article 78 proceeding for an order annulling a determination of respondent denying his application for accident disability retirement, and granting his application for ordinary disability retirement only, affirmed, without costs. We agree with the dissenting opinion that it was the duty of the board of trustees to make an independent determination as to whether petitioner’s conceded disability was service connected. It seems to us that the trustees did precisely that. The record clearly supports the medical board’s conclusion that petitioner’s disability was not service connected. Indeed, none of the medical reports submitted on petitioner’s behalf express the opinion that it arose out of an injury suifered in the line of duty. The issue was quite clearly presented to the board of trustees. Six of the trustees agreed with the medical board and concluded that petitioner was entitled only to ordinary disability retirement. Six disagreed with the medical board and determined that petitioner was entitled to accident disability retirement. Since a majority vote was necessary to establish petitioner’s right to the greater benefits provided by accident disability retirement, he was granted ordinary disability retirement, with a proviso that if the board should thereafter fix the allowance at the higher amount, he would be entitled to receive the excess from the date of his retirement. No doubt it would have been the better practice if the board of trustees had explicitly declared in so many words that accident disability retirement was denied because a majority was not persuaded that the injury was service connected. Under the circumstances in this case, however, it would be a pointless formality to remand for the purpose of requiring the board of trustees to state explicitly that which the record clearly discloses in fact occurred. Concur—Kupferman, J. P., Sandler and Sullivan, JJ.