Mondello v. Beekman

Order and judgment (one paper), Supreme Court, New York County, entered May 19, 1979, remanding petitioner’s application for a line of duty disability retirement to respondents for a determination and granting other relief, is reversed, on the law, and the petition is dismissed, without costs. The question whether petitioner is permanently disabled is a medical question on which the opinion of the fire department’s 1-B medical board is conclusive unless arbitrary or capricious. After many examinations and consultations, the medical board came to the conclusion that petitioner was not permanently disabled stating: “It is the opinion of the 1-B Medical Board that he is temporarily disabled by virtue of his refusal to accept proper medical treatment and we do not consider him permanently disabled at this time.” This is not the same as an order to petitioner to undergo surgery. But in determining whether petitioner is permanently disabled, the medical board has a right to consider whether proper medical treatment (including surgery) is reasonably and safely available to correct the disability, and if it is, the board has the right to consider the disability a temporary one. We have been informed that after the determination by the medical board here sought to be reviewed, the medical board at a later date found petitioner to be permanently disabled but apparently not as a result of line of duty, and that the board of trustees of the pension fund has deferred action on petitioner’s case pending determination of this appeal. The record now before us is not addressed to these events, and our determination is without prejudice to any future CPLR article 78 proceeding based on events after the filing of the petition herein. Concur — Birns, J. P., Sullivan, Markewich and Silverman, JJ.