The opinion
Cevallos v Tucker
2026 NY Slip Op 30695(U)
February 24, 2026
Supreme Court, New York County
Docket Number: Index No. 151064/2025
Judge: Kathleen Waterman-Marshall
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file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1510642025.NEW_YORK.001.LBLX000_TO.html[03/10/2026 3:45:50 PM]
FILED: NEW YORK COUNTY CLERK 02/26/2026 11:42 AM INDEX NO. 151064/2025
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. KATHLEEN WATERMAN-MARSHALL PART 31
Justice
---------------------------------------------------------------------------------X INDEX NO. 151064/2025
MARCOS CEVALLOS,
MOTION DATE 01/23/2025
Plaintiff,
MOTION SEQ. NO. 001
-v-
ROBERT TUCKER, AS THE FIRE COMMISSIONER OF
THE CITY OF NEW YORK AND AS CHAIRMAN, EX
OFFICIO, OF THE BOARD OF TRUSTEES OF THE NEW
YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION DECISION + ORDER ON
FUND, THE BOARD OF TRUSTEES OF THE NEW YORK MOTION
CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND,
THE CITY OF NEW YORK
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 35
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, the petition by Marcos Cevallos (“Mr. Cevallos”) for an
order, pursuant to Article 78 of the CPLR, annulling respondents’ denial of his application for
Accident Disability Retirement (“ADR”) and determination that he is entitled to Ordinary
Disability Retirement (“ODR”), and awarding Mr. Cevallos an ADR pension, is denied.
Background
This Article 78 Special Proceeding challenges the type of disability retirement granted to
Mr. Cevallos. Briefly, FDNY employees (members of the Fire Pension Fund) may be retired and
collect pension benefits after becoming disabled. An employee is granted ODR when they
become disabled, cannot perform their duties, and ought to be retired. ODR benefits are
calculated based upon a statutory formula considering the number of years of service. On the
other hand, an employee is granted ADR when they become disabled as a result of a line of duty
accidental injury. As relevant here, ADR provides for greater pension benefits than ODR.
Petitioner joined the FDNY in July 2013. At the time he joined, he was credited with 10
years of service because of a priority hire plan in which minority candidates who were
previously passed over were credited with 10 years of service upon their hiring.
Line of Duty Injuries
Between March 2014 and August 2022, Mr. Cevallos suffered seven line of duty injuries
to his back, as follows:
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 1 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
1 of 6
[* 1]
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
March 2014 – Mr. Cevallos suffered a back injury while operating a Hurst tool and
“pack[ing] everything back into the truck”. He missed 11 days of work due to this injury.
April 2015 – Mr. Cevallos suffered a back injury while responding to a fire when his foot
went through a collapsed floor, and he twisted his back. He alleged that this event began his
chronic back pain.
August 2017 – Mr. Cevallos suffered a back injury while responding to a motorcycle
crash. He was lifting an injured person onto the stretcher when the stretcher broke, and in his
efforts not to drop the injured person, he twisted his back. Mr. Cevallos missed 15 days of work
due to this injury.
February 2018 – Mr. Cevallos suffered a further back injury while he was carrying a
patient down a flight of stairs on a stretcher. He lost his balance on a damaged stair tread and
twisted his back. Mr. Cevallos missed approximately four months of work due to this injury. He
alleges that this event resulted in two herniated discs, two bulging discs, and a tremendous
amount of chronic pain such that when he returned to work, he required consistent use of
acetaminophen.
September 2019 – Mr. Cevallos again injured his back while responding to a fire. He
tripped over debris causing a cylinder to fall on his back and he twisted his back. He missed 17
days of work related to this injury.
February 2020 – Mr. Cevallos twisted his back twice during the same day. The first twist
occurred while lifting a patient onto a stretcher due to the weight of the patient, together with a
cluttered area and wet floor. The second twist occurred he while responding to a fire and the hose
line was suddenly pulled back. After the second twisting event, Mr. Cevallos was transported to
the hospital and missed 15 days of work.
August 2022 – Mr. Cevallos suffered three herniated discs and a bulging disc while
responding to a fire and apartment explosion. He slipped on debris and to avoid falling through a
hole in the roof, Mr. Cevallos jerked and twisted his body. He was transported to the hospital and
never returned to full-duty service.
FDNY Committee Determination and October 2023 Medical Board Report
The Medical Board Committee for the FDNY Bureau of Health Services (the
“Committee”) evaluated Mr. Cevallos’ condition following his August 2022 accident to
determine his fitness to return to duty. The Committee, which is comprised of three physicians,
found Mr. Cevallos was unfit for full firefighting duties due to a partial and permanent disability,
and recommended a limited-service status. The FDNY Commissioner then filed an application
for Mr. Cevallos’ retirement based upon the Committee’s determination that Mr. Cevallos could
not return to full duty.
The New York City Fire Pension Fund Subchapter 2 Medical Board (“the Medical
Board”) reviewed the FDNY Commissioner’s application to retire Mr. Cevallos along with the
medical records Mr. Cevallos submitted, and interviewed Mr. Cevallos. The Medical Board, also
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 2 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
2 of 6
[* 2]
FILED: NEW YORK COUNTY CLERK 02/26/2026 11:42 AM INDEX NO. 151064/2025
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
a three-physician panel, unanimously concluded that Mr. Cevallos was disabled, and that the
disability was causally related to Chronic Degenerative Joint Disease leading to chronic pain
syndrome.
Thereafter, Mr. Cevallos submitted additional medical records including a November
2012 x-ray report of the lumbar spine, and November 2023 reports from Drs. Snow and Saint
Martin. The Board of Trustees remanded the matter back to the Medical Board for further
consideration of the additional documents.
January 2024 Medical Board Report
The Medical Board considered the additional documents and evidence on remand and
unanimously concluded that Mr. Cevallos was disabled, but that “there is insufficient objective
medical evidence in the remanded medical documentation that the incident dated 8/12/2022
permanently aggravated the member’s lumbar spine condition pursuant to Tobin v. Steisel.” It,
therefore, upheld its prior recommendation of an ODR.
Thereafter, Mr. Cevallos again submitted additional documentation and evidence
including his own undated letter, a July 5, 2024 letter from Dr. Kooch, and accident reports (CD-
72) from 2021, 2019, 2018, and 2015. Mr. Cevallos contended that at the time he initially
applied for disability retirement he was unaware that ADR could be based upon the cumulative
effect of multiple line of duty injuries and sought to augment his application to include these
prior injuries. The Board of Trustees remanded the matter back to the Medical Board for further
consideration of the additional documents and evidence.
October 2024 Medical Board Report
The Medical Board considered the additional documents and evidence on the second
remand and found that the additional evidence further supported its recommendation of ODR
instead of ADR, as Mr. Cevallos complained of chronic back pain during a hospitalization in
early 2014, prior to any line of duty injury and less than a year after his employment with FDNY
began.
Specifically, the Medical Board’s report stated:
Of note is that on 3/29/2014, when the member was seen in the
emergency room at Phelps Memorial Hospital, he told the
examiner that he had “chronic back pain and was taking
Naprosyn.” This is less than a year on the job, with no previous on
the job injury to his back. There was no evidence of acute changes
on the MRI or via the examination.
The member’s past and present history details were more
consistent with chronic back pain caused by degenerative changes
and not by acute injury.
The other injuries listed revealed chronic back changes that
improved over the years and also progressed with age. There was
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 3 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
3 of 6
[* 3]
FILED: NEW YORK COUNTY CLERK 02/26/2026 11:42 AM INDEX NO. 151064/2025
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
no evidence of an acute episode that was found following any of
the listed CD-72s [member injury reports], which led to the
“continued” chronic back pain, as noted in early 2014.
The Medical Board concluded that Mr. Cevallos’ disability was related to Chronic
Degenerative Joint Disease and not to acute injury. It found that there was no evidence his
complaints of chronic pain were related to any acute episode and that the evolution of changes to
Mr. Cevallos’ spine were more consistent with age and progression of degenerative changes.
Consequently, the Medical Board recommended that Mr. Cevallos be granted ODR.
November 2024 Board of Trustees Final Determination
The Board of Trustees considered Mr. Cevallos’ disability retirement application and the
Medical Board’s report. In a split vote, the Board of Trustees granted Mr. Cevallos ODR and
denied his application for ADR.
Article 78 Proceeding
Mr. Cevallos brought this Article 78 proceeding challenging the denial of his ADR
application. He contends that the Board of Trustees decision to retire him on ODR was arbitrary
and capricious and that his line of duty injuries, taken together, are the cause of his disability.1
Respondents oppose, and contend that the Medical Board was entitled to resolve any competing
medical evidence, and properly based its recommendation upon the totality of the objective
medical evidence. As such, respondents contend the Article 78 proceeding should be dismissed.
Discussion
The standard of review of an administrative determination via an Article 78 proceeding is
well established. The Court must determine whether there is a rational basis for the
administrative determination or whether it is arbitrary and capricious (Matter of Gilman v New
York State Div. of Housing and Community Renewal, 99 NY2d 144 [2002]). “An action is
arbitrary and capricious when it is taken without sound basis in reason or regard to the facts”
(Peckham v Calogero, 12 NY3d 424 [2009]; see also Matter of Pell v Board of Educ. of Union
Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d
222 [1974]). When a determination is supported by a rational basis, this Court must sustain the
determination, notwithstanding that the Court would reach a different result than that of the
administrative agency (Peckham v Calogero, 12 NY2d at 431).
Whether a firefighter employee is entitled to ADR is a two-step inquiry. First, the
employee must be found disabled by the Medical Board, and if the employee is found to be
disabled the Medical Board makes a recommendation as to causation of the disability – whether
the employee should be retired on ODR or ADR (Matter of Borenstein v New York City
Employees’ Retirement Sys., 88 NY2d 756, 760 [1996]). If the employee is found disabled, the
Board of Trustees must determine whether the disability occurred as an acute line of duty injury
or an ordinary disability (id. at 760). The Medical Board’s finding as to disability is binding on
1
At the Board of Trustee’s roll call vote, it was noted that Mr. Cevallos had sufficient service credit (considering the
10 years of credit awarded at the time he was hired) to retire on a service retirement pension, which apparently
provided greater benefits to him than the ordinary disability retirement pension.
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 4 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
4 of 6
[* 4]
FILED: NEW YORK COUNTY CLERK 02/26/2026 11:42 AM INDEX NO. 151064/2025
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
the Board of Trustees; however, the Medical Board only recommends whether the disability was
a natural and proximate result of a line of duty injury – the ultimate determination on the issue of
causation rests with the Board of Trustees (id.).
Stated differently, it is for the Medical Board to determine whether an employee is disabled
and for the Board of Trustees to determine whether the disabling injury occurred in the line of duty,
and thus whether ODR or ADR is appropriate. The employee has the burden of proving their alleged
disability and its causation (Matter of Evans v City of New York, 145 AD2d 361 [1st Dept 1988]).
The Medical Board is entitled to resolve conflicting interpretations of medical evidence and
the Court must defer to the Medical Board’s resolution of conflicting medical evidence, and the
Board of Trustees’ judgment to accept or reject the Medical Board’s recommendation, where the
determination is supported by “some credible evidence” (Matter of Mulheren v Board of Trustees of
the Police Pension Fund, Art. II, 307 AD2d 129 [1st Dept 2003] [“Although petitioner’s physicians
drew the opposite conclusion, where, as here, the medical evidence is subject to conflicting
interpretations, we must defer to the expertise of the Medical Board in resolving such conflict and to
the judgment of the Board of Trustees in adopting the Medical Board’s findings”] lv. denied 100
NY2d 515 [2003]; Henn v Sewell, 227 AD3d 615, 616 [1st Dept 2024] [agency has duty to choose
between competing testimony and Court may not reject agency’s choice]).
There is no dispute that Mr. Cevallos has herniated and bulging discs in his lumbar spine and
that he suffers back pain and radiculopathy. There is also no dispute that Mr. Cevallos is disabled as
a result of the pain and radiculopathy. However, Mr. Cevallos disputes the Medical Board’s
conclusion and recommendations that the cause of his back pain and disability is degenerative joint
disease. Mr. Cevallos instead contends that the seven line of duty injuries he suffered between 2014
and 2022 are the cause of his disabling back pain.
The Medical Board was presented with “some credible evidence” that Mr. Cevallos had back
pain prior to any accident with the Fire Department and that his current reports of pain were not
connected to any line of duty injury. This evidence included, inter alia, hospital records from 2014 in
which Mr. Cevallos self-reported “chronic” back pain from years of lifting weights requiring the use
of Naprosyn. Notably, these medical records pre-date any line of duty injury suffered by Mr.
Cevallos. Additionally, the Medical Board noted that the imaging submitted failed to show an acute
injury, and instead was more consistent with degenerative changes which worsened with age. The
Medical Board was entitled to weigh this evidence against the report of Mr. Cevallos’ doctor, Dr.
Kooch, and any other medical evidence supporting Mr. Cevallos’ claim of disability based upon a
line of duty injury, to reach its recommendation as to causation (see e.g. Matter of Borenstein, 88
NY2d at 760; Matter of Mulheren, 307 AD2d 129).
Mr. Cevallos’ reliance on Matter of Boder v O’Neill (170 AD3d 528 [1st Dept 2019]), Matter
of Perrotta v Board of Trustees of N.Y. Fire Dept., Art. 1-B Pension Fund (232 AD2d 493 [2d Dept
1996]), and Matter of Mescall v Board of Trustees of N.Y. Fire Dept., Art. 1-B Pension Fund (204
AD2d 643 [2d Dept 1994]) to annul the respondents’ determination is misplaced as those matters are
factually distinct. In those matters, the causal connection between a line of duty injury and disability
was incontrovertible – there was no evidence that the disability was caused by anything other than
the line of duty injury. Conversely, here, there is evidence that Mr. Cevallos suffered from self-
described “chronic” back pain prior to any line of duty injury. Thus, there is competing evidence
regarding causality, and it was the Medical Board’s duty to resolve these conflicts.
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 5 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
5 of 6
[* 5]
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/25/2026
Tobin v Steisel does not require annulling the administrative determinations, as Mr. Cevallos
contends (64 NY2d 254 [1985]). Tobin stands for the proposition that the well-established causation
rule in tort and workers’ compensation matters – that an accident which aggravates a preexisting
condition may be considered the cause of the injury/disability – also applies in accident disability
retirement (ADR) matters (id.). It does not require that the Medical Board find an accident, or
accidents, aggravated a preexisting condition sufficient to be the cause of the disability. The Medical
Board reviewed the radiographic images of Mr. Cevallos’ spine and found improvement of his line of
duty injuries and that based upon this improvement, Mr. Cevallos’ continued disabling pain and
condition could not be explained by his line of duty injuries. It further found that this imaging, taken
over several years, failed to show an acute episode. Taken together with Mr. Cavellos’ reports of
chronic back pain prior to any line of duty injury, this constitutes “some credible evidence”
supporting the Medial Board’s determination and recommendation that that the totality of the
evidence was consistent with degenerative disease, and not an acute injury aggravating a pre-existing
condition.
Conclusion
Put simply, the Medical Board was presented with competing and arguably conflicting
medical evidence concerning the cause of Mr. Cevallos’ disability. By way of brief example, on the
one hand, the report of Mr. Cevallos’ doctor urges that there was no pre-existing condition prior to
Mr. Cevallos’ line of duty injuries, because he was able to pass the physical exam and the 2012 x-ray
showed no structural issues. One the other hand, March 2014 medical records show that Mr. Cevallos
complained of chronic back pain as the result of weightlifting, requiring medication, and various
radiographic studies revealed degenerative disc herniations and bulges and the absence of an acute
injury. The Medical Board was entitled to review the competing evidence and recommend that the
disability was caused by degenerative disease, notwithstanding the prior line of duty injuries (Matter
of Kaufman v Murray, 85 AD3d 1534 [3d Dept 2011]). Its recommendation was, therefore, based
upon “some credible evidence,” as required, the Board of Trustees was entitled to accept the
recommendation and grant Mr. Cevallos ODR, and this Court cannot disturb this determination.
While the Court is sympathetic to Mr. Cevallos and notes that he inarguably served this City at great
personal expense, as evinced by repeated line of duty injuries, the Court may not disturb the
determination of the Board of Trustees to accept the recommendation of the Medical Board and retire
Mr. Cevallos on an ODR as opposed to an ADR.2
Accordingly, it is
i~~--M=#~
ORDERED that the petition is denied, and the matter is dismissed.
2/24/2026
DATE KATHLEEN WATERMAN-MARSHALL,
J.S.C.
□ ~ ~
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
2
As previously noted, Mr. Cevallos had sufficient service credit to retire on a service retirement pension, which
provided greater benefits to him than the ordinary disability retirement pension, and apparently did so.
151064/2025 CEVALLOS, MARCOS vs. ROBERT TUCKER, AS THE FIRE COMMISSIONER OF Page 6 of 6
THE CITY OF NEW YORK AND AS CHAIRMAN, EX OFFICIO, OF THE BOARD OF TRUSTEES OF
THE NEW YORK CITY FIRE DEPARTMENT, ARTICLE I-B PENSION FUND ET AL
Motion No. 001
6 of 6
[* 6]