# Matter of Clancy v. Kavanagh

> New York Supreme Court, New York County · January 3, 2024 · 2024 NY Slip Op 30026

URL: https://www.frixlaw.com/law-library/cases/9916475

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** January 3, 2024
- **Citations:** 2024 NY Slip Op 30026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Matter of Clancy v Kavanagh
2024 NY Slip Op 30026(U)
January 3, 2024
Supreme Court, New York County
Docket Number: Index No. 158921/2022
Judge: Nancy M. Bannon
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 01/05/2024 05:02 PM INDEX NO. 158921/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NANCY M. BANNON PART 42
Justice
---------------------------------------------------------------------------------X INDEX NO. 158921/2022
In the Matter of the Application of
MOTION DATE 04/14/2023
MICHAEL C CLANCY,
MOTION SEQ. NO. 001
Petitioner,

For Judgment pursuant to Article 78

-v- DECISION + ORDER ON
LAURA KAVANAGH, THE BOARD OF TRUSTEES, LOUIS MOTION
LOMBARDI, DAMIAN MARTINO, and PETER NEUMANN,

Respondents.
---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .

I. INTRODUCTION

In this proceeding pursuant to CPLR Article 78, petitioner Michael Clancy, a retired
firefighter with the New York City Fire Department (“FDNY”), seeks judicial review of a
determination by respondent the Board of Trustees of the FDNY, Article I-B Pension Fund
(“Board of Trustees”), to deny his application for Accident Disability Retirement (“ADR”) and
instead grant him Ordinary Disability Retirement (“ODR”). Respondents Laura Kavanagh,
former Acting Fire Commissioner of the FDNY, and Louis Lombardi, Damian Martino, and Peter
Neumann, members of the Fire Pension Fund Medical Board, oppose the petition. The petition
is granted to the extent discussed below.

II. BACKGROUND

In 2005, two years before beginning his employment with the FDNY, the petitioner
suffered an injury to his right shoulder while lifting weights, necessitating a surgical repair. The
petitioner thereafter began working as a full-duty firefighter for the FDNY in August 2007.
During his employment with the FDNY, he suffered several additional injuries to his right
shoulder while in the line-of-duty—on June 12, 2010, February 21, 2012, and July 23, 2013.

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Following each of these line-of-duty injuries the petitioner was medically cleared and able to
return to full duty.

On December 4, 2020, the petitioner again injured his right shoulder when he slipped
and fell while doing maintenance work atop a firetruck. As described in a subsequent report by
the petitioner’s treating physician, Dr. Answorth Allen, an orthopedic surgeon at the Hospital for
Special Surgery (“HSS”), the petitioner suffered an acute injury when, to arrest his fall from atop
the firetruck, he grabbed a crossbar with his right hand causing a hyperabduction of, and
“sudden trauma” to, his right shoulder.

The parties agree that the December 2020 injury resulted from an accident suffered
while the petitioner was in the line-of-duty. The parties further agree that the petitioner, who
was previously able to fully perform the physically demanding functions of a full-duty firefighter,
became permanently disabled following the December 2020 injury, as he suffered persistent
motion loss, pain, and notably decreased strength in his right shoulder despite extensive
medical treatment.

On January 5, 2021, the petitioner began treatment for the December 2020 injury with
Dr. Allen, who thereafter performed two surgeries to repair the petitioner’s right shoulder, an
arthroscopic bankart repair, capsulorrhaphy, and biceps tenodesis performed on January 28,
2021, and a second surgery for capsular release, manipulation under anesthesia, and labral
repair on September 16, 2021. In a letter dated December 17, 2021, Dr. Allen noted that
“[p]revious to [the December 2020 injury] Mr. Clancy claims to have had no pain, full range of
motion, and full weight bearing to right shoulder[,]” but that, more than a year later, and despite
the medical treatment rendered to him, the petitioner continued to suffer from “persistent motion
loss, notable decreased strength . . . and persistent pain” in his right shoulder. Consequently,
Dr. Allen concluded that, “[b]ased on these factors from the [December 2020] accident, Mr.
Clancy is not a candidate to return to his full duties as a firefighter.”

On December 22, 2021, the FDNY Bureau of Health Services (“BHS”) Medical
Committee issued an opinion agreeing with Dr. Allen’s finding that the petitioner was
permanently disabled for full firefighting duties, citing his persistent limitations in range of motion
and strength following the December 2020 injury and the subsequent surgeries to repair his
right shoulder. Notably, the BHS opinion took account of the fact that the petitioner had a
previous surgical repair of his right shoulder in 2012 (following the second of the four line-of-

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duty injuries to his right shoulder), but that he “had been working full duty since then and doing
well,” at least up until the December 2020 injury. Based on this BHS opinion, on January 14,
2022, the Fire Commissioner’s Office submitted applications for ADR and ODR on the
petitioner’s behalf. ADR pensions are granted to firefighters who are disabled due to an
accidental injury in the line of duty. ODR pensions are a lesser pension granted to those who
are disabled, but not due to an injury suffered in the line of duty.

On April 13, 2022, the Fire Pension Fund Medical Board (the “Medical Board”) issued its
recommendations based on its review of the petitioner’s medical records going back to his first
line-of-duty injury in 2010, including the injury reports from his various line-of-duty injuries, MRI
reports related to his line-of-duty injuries, reports from BHS physician examinations, relevant
surgical notes, and the petitioner’s HSS treatment records from Dr. Allen. The Medical Board
did not review any medical records from before 2010, but briefly noted the petitioner’s history of
a non-line-of-duty right shoulder injury and surgical repair in 2005. After summarizing the
petitioner’s medical history, including the treatment he received following the December 2020
injury, as well as the three prior line-of-duty injuries to the same right shoulder, the Medical
Board unanimously concluded that the petitioner “is permanently disabled from performing full
Firefighting duties due [sic] his right shoulder.” The Medical Board noted, with respect to the
petitioner’s medical history, that:

[T]he member underwent multiple right shoulder surgeries. The member had a
history of a Labral tear in 2005 and radiographic evidence of previous shoulder
dislocation first noted in 2012 as per his MRI right shoulder dated 2/23/2012 (which
indicated a Hill-Sachs lesion of the Humeral head). The follow up MRIs do not
show an acute injury due to the fact that injuries where [sic] on the Bursal side of
the joint.

The Medical Board then “further note[d],” without explanation, “that the injury dated
12/4/2020 is not the proximate cause of the member’s right shoulder disability” and
recommended the petitioner for ODR rather than ADR.

On June 29, 2022, the Board of Trustees held a meeting to, inter alia, review the Medical
Board’s recommendation and decide the petitioner’s ADR application. The Board of Trustees’
vote regarding the petitioner’s application for ADR benefits was tied, 6 to 6. Accordingly,

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pursuant to well-established and accepted practice in the case of a deadlocked vote, the Board
of Trustees denied the ADR application and granted the petitioner an ODR.

The petitioner thereafter commenced this proceeding seeking, as relevant here, to have
the court (1) annul the determination of the Board of Trustees to deny his ADR application and
(2) direct the Board of Trustees to grant his ADR application; or, in the alternative, (3) direct a
trial pursuant to CPLR 7804(h) so that the doctors from the Medical Board may be produced to
testify in support of their recommendation to deny ADR benefits; or, in the alternative, (4)
remand the matter to the Board of Trustees to have the petitioner’s ADR application reviewed
by a newly composed Medical Board. The respondents oppose the petition.

III. LEGAL STANDARD

Pursuant to Administrative Code of the City of New York § 13-353, an FDNY firefighter is
entitled to ADR benefits if medical examination and investigation show that he or she is
“physically or mentally incapacitated” during his or her service “as a natural and proximate result
of an accidental injury received in such city-service.” See Matter of Meyer v Bd. of Trustees of
the New York City Fire Dept., Art. 1-B Pension Fund by Safir, 90 NY2d 139, 144 (1997). In
evaluating an FDNY member’s eligibility for ADR, the Medical Board first conducts a medical
examination and reviews medical records to determine whether the member is disabled for
performance of duty. Id. “If the Medical Board concludes that the member is disabled, it must
further determine whether the disability is a natural and proximate result of an accidental injury
received in such city-service and certify its recommendation on this issue to the Board of
Trustees, the body ultimately responsible for retiring the pension fund member and determining
the issue of service-related causation.” Id.

“Ordinarily, the decision of the board of trustees as to the cause of an officer's disability
will not be disturbed unless its factual findings are not supported by substantial evidence or its
final determination and ruling is arbitrary and capricious.” Matter of Canfora v Bd. of Trustees of
Police Pension Fund of Police Dept. of City of New York, 60 NY2d 347, 351 (1983); see CPLR
7803(3) & (4). However, where, as here, the court reviews a determination of the Board of
Trustees to deny ADR, and the Board of Trustees’ determination resulted from a tied vote, “the
standard of judicial review is necessarily different,” as “there has been no factual determination
by the board to be subjected to review” under the normal standard. Matter of Canfora v Bd. of
Trustees of Police Pension Fund of Police Dept. of City of New York, supra at 351-52; see

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Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., Art. 1-B Pension Fund by
Safir, supra at 145. In such circumstances, the reviewing court may not set aside the Board of
Trustees' determination “unless it can be determined as a matter of law on the record that the
disability was the natural and proximate result of a service-related accident.” Matter of Walsh v
Scoppetta, 18 NY3d 850, 852 (2011), citing Matter of Canfora v Bd. of Trustees of Police
Pension Fund of Police Dept. of City of New York, supra. Consequently, “as long as there was
any credible evidence of lack of causation before the Board of Trustees, its determination must
stand.” Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., Art. 1-B Pension
Fund by Safir, supra at 145; see Matter of Baranowski v Kelly, 95 AD3d 746, 746 (1st Dept.
2012) (where, as here, Medical Board finds an employee disabled and Board of Trustees
deadlocks on issue of causation, “accidental disability retirement is denied as long as there is
any credible evidence of lack of causation before the Board of Trustees”).

IV. DISCUSSION

In support of the petition, the petitioner submits, inter alia, his employment-related
medical records from the BHS, including reports from examinations by BHS physicians and
injury reports dating back to the petitioner’s first line-of-duty injury on June 12, 2010; records
from Dr. Allen’s treatment of the petitioner; MRI reports; the opinion of the BHS Medical
Committee; the recommendation of the Medical Board; and the resolution of the Board of
Trustees to deny the petitioner’s ADR application and grant only his ODR application.

In opposition, the respondents submit, inter alia, the same documents submitted by the
petitioner, as well as reports from MRIs performed following each of the petitioner's line-of-duty
injuries prior to the December 2020 injury, and minutes from the Board of Trustees' June 29,
2022, meeting.

It is undisputed that, despite his history of right shoulder injuries, the petitioner did not
suffer from a right shoulder disability and was medically cleared and able to perform his job as a
full duty firefighter prior to the December 2020 injury; that the December 2020 injury resulted
from an accident and was a line-of-duty injury; and that, following the December 2020 injury,
despite undergoing a pair of surgical repairs, the petitioner was determined by his treating
physician, Dr. Allen, the BHS Medical Committee, and the Medical Board to be permanently
disabled due to the condition of his right shoulder. Based on these undisputed facts, logic
would dictate that the December 2020 injury was the proximate cause of the petitioner’s

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disability. Indeed, both Dr. Allen and the BHS Medical Committee attributed the cause of the
petitioner’s disability to the December 2020 injury. The Medical Board, however, inexplicably
concluded otherwise, finding that the December 2020 injury was not the proximate cause of the
petitioner’s disability and recommending to the Board of Trustees against granting ADR
benefits.

The basis for the Medical Board’s conclusion regarding the lack of causality is far from
clear, as it is stated in conclusory fashion without a plain explanation of the Board’s reasoning.
However, based on the discussion of the petitioner’s medical history that immediately precedes
the announcement of the Board’s causality finding, its reasoning appears to be that the
petitioner had a history of previous injuries to the same right shoulder, and that the petitioner’s
disability manifested in a different part of the right shoulder than that affected by the December
2020 injury. Assuming this accurately reflects the Board’s reasoning, this rationale strains
credulity.

With respect to the petitioner’s history of prior right shoulder injuries, it is undisputed that
his initial 2005 injury did not prevent him from gaining employment as a firefighter, and that he
was medically cleared and able to return to full duty after each of his subsequent injuries, all of
which were suffered in the line-of-duty. Indeed, the BHS Medical Committee itself noted that
the petitioner had a previous surgical repair of his right shoulder in 2012 but “had been working
full duty since then and doing well,” up until the December 2020 injury. It was incumbent on the
Medical Board, if it wished to point to these prior injuries as the true cause of the petitioner’s
disability, to reasonably address this glaring incongruity. It did not do so. Further, the Medical
Board had before it no credible evidence that would have allowed it to conclude that the 2005
non-line-of-duty injury was the cause of the plaintiff’s disability, as it only reviewed medical
records dating back to 2010. See Matter of Meyer v Bd. of Trustees of the New York City Fire
Dept., Art. 1-B Pension Fund by Safir, supra at 147 (“credible evidence is evidence that
proceeds from a credible source and reasonably tends to support the proposition for which it is
offered . . . [it is] not merely a conclusion of law, nor mere conjecture or unsupported
suspicion”). And, insofar as the Board was pointing to the petitioner’s prior line-of-duty injuries
as the cause of his disability, its conclusion was irrational and internally inconsistent because
attributing causation to these prior line-of-duty injuries should still result in a recommendation in
favor of ADR benefits.

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As to the possibility that the Medical Board’s rationale was that the disability manifested
in a different part of the right shoulder than that affected by the December 2020 injury, the
Board’s conclusion simply lacks a sound basis in reason or any medical explanation articulated
in the record. The basis for this reading of the Board’s reasoning is its statement, immediately
after a brief reference to the petitioner’s prior right shoulder surgery in 2012, that “follow up
MRIs do not show an acute injury due to the fact that injuries where [sic] on the Bursal side of
the joint.” Assuming that this highly ambiguous statement was meant to convey that, in the
Board’s opinion, the petitioner’s disability stemmed from a condition affecting a different part of
the right shoulder than that affected by the December 2020 injury, it is unclear how one would
square this opinion with the Board’s much more clearly explicated disability finding. The
Board’s conclusion that the petitioner was disabled was based on the medical evidence that,
following the pair of surgical repairs performed by Dr. Allen, the petitioner continued to suffer
from persistent pain, weakness, and decreased range of motion in his right shoulder. That is,
the disability found by the Board was attributed to the condition of the petitioner’s right shoulder
generally, and not to a more particular condition specifically affecting or located in only one
discrete portion of the joint.

Moreover, the Board’s apparent reasoning would require one to believe that, in an
incredible coincidence, the petitioner suffered a severe injury to one part of his right shoulder,
requiring multiple surgical repairs, and, simultaneously, a latent and/or preexisting condition, in
a different part of the same shoulder suddenly, for an unknown but entirely unrelated and
independent reason, caused the petitioner to become permanently disabled. The court simply
cannot find rationality in such a conclusion. Further, other than its general summary of the
petitioner’s history of prior shoulder injuries, the Medical Board does not identify a specific,
alternative cause of his disability, let alone point to credible evidence demonstrating causality
with respect to such an alternative.

In sum, the Medical Board failed to clearly explicate the rationale for its causality opinion,
leaving the court to guess at its reasoning. Even so, the conclusion that the Medical Board
lacked any credible evidence of lack of causation appears nearly inescapable. Either the
Medical Board’s causality finding was based on impermissible conjecture regarding the
presence of some unidentified alternative cause for the petitioner’s disability, or else it was
premised on the petitioner’s prior line-of-duty injuries, which are the only potential alternative
cause that appear in the records reviewed by the Medical Board. But, as already discussed
above, if the prior line-of-duty injuries are to be accepted as the true cause of the petitioner’s
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disability, then the Medical Board must explain why such a conclusion does not itself require a
recommendation in favor of ADR benefits.

For these reasons, the petition is granted to the extent that the determination to deny the
petitioner’s ADR application is annulled and the proceeding is remanded to the Medical Board
either to reassess the evidence in its entirety or to set forth a clear and thorough explanation as
to how it determined that the December 2020 injury was not the cause of the petitioner’s
disability and/or, if the cause of his disability is determined to be his prior line-of-duty injuries,
why this would not also entitle him to ADR benefits.

V. CONCLUSION

Accordingly, it is

ORDERED and ADJUDGED that the petition is granted to the extent that the
determination is annulled and the matter remanded for appropriate reconsideration in
accordance with this court’s decision; and it is further

ORDERED that the Clerk of the court shall enter judgment accordingly.

This constitutes the Decision and Order of the court.

N;Jl~
HON. NANCY M. BANNON
1/3/2024 $SIG$
DATE
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ □
X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9916475. Public record. Not legal advice.