The opinion
Kim v Sewell
2024 NY Slip Op 30760(U)
March 11, 2024
Supreme Court, New York County
Docket Number: Index No. 152035/2022
Judge: Arlene P. Bluth
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.
INDEX NO. 152035/2022
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 152035/2022
RORY KIM,
MOTION DATE 03/04/20241
Petitioner,
MOTION SEQ. NO. 001
-v-
KEECHANT SEWELL, THE BOARD OF TRUSTEES OF
THE NEW YORK CITY POLICE PENSION FUND, ARTICLE
II, DOROTHY KUNSTADT, M.D., LAWRENCE SCHARER,
DECISION + ORDER ON
M.D., LAWRENCE REDUTO, M.D., IN THEIR CAPACITY
AS THE MEDICAL BOARD OF THE POLICE PENSION MOTION
FUND, ARTICLE II
Respondent.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30
were read on this motion to/for ARTICLE 78 - ADR .
The petition to for an order directing respondents to retire petitioner with accident
disability retirement (“ADR”) is denied.
Background
Petitioner started working for the NYPD in January 2004 and served until he was granted
Ordinary Disability Retirement (“ODR”) in 2021. He emphasizes that when he underwent
physical examinations prior to starting work for the NYPD, there was no indication of any heart-
related ailments. Petitioner alleges that, unfortunately, on December 24, 2018 he suffered a
1
The docket indicates that this proceeding was scheduled for oral argument on various dates in 2022 although it is
not clear whether or not oral argument actually occurred. Although this proceeding was only assigned the
undersigned on March 4, 2024, the Court apologizes on behalf of the court system for the substantial delay in the
resolution of this proceeding.
152035/2022 KIM, RORY vs. SEWELL, KEECHANT ET AL Page 1 of 4
Motion No. 001
1 of 4
[* 1]
INDEX NO. 152035/2022
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/11/2024
stroke. In the aftermath, he was subsequently treated by various physicians until he retired with
ODR in November 2021.
Petitioner explains that on April 16, 2019 he applied for ADR under the Heart Bill, a
statute that provides a presumption that heart-related issues (including a stroke) are caused by
being in the line of duty. On July 19, 2019, “The Medical Board notes that the cause of the
infarct is most likely embolus or thrombosis related to the left internal carotid artery aneurysm
which has been treated. Underlying cause of the internal carotid artery abnormality is not clear. It
is the opinion of the Article II Medical Board that it is unlikely to be due to arthrosclerosis
obvious cause in the form of the aneurysm was present and arthrosclerosis was described as
minimal” (NYSCEF Doc. No. 4, ¶ 17). It granted only ODR for petitioner (id. ¶ 18).
The Board of Trustees then sent petitioner’s ADR application to the Medical Board for
another review in 2020. The Medical Board determined that:
“In summary, the new evidence does not give any new insight as to the underlying
cause of the sergeant's stroke, which was the basis for the recommendation for
Ordinary Disability Retirement. The Medical Board finds that there is evidence on
radiologic studies of several abnormalities of his cerebral circulation including an
aneurysm of the supraclinoid portion of the left internal carotid artery, abnormal
cerebral circulation with what was called large vessel angiopathy as well as a
narrowing of the M 1 branch of the left middle cerebral artery. The previous
documentation did not reveal stress related pathology such as hypertension or
cardiovascular disease which could be attributed to his work as a police officer. He
has a number of pathological findings unrelated to the stress of his job” (NYSCEF
Doc. No. 5, ¶ 9).
Yet again, the Board of Trustees referred the instant application to the Medical Board for
another evaluation in 2021. The Medical Board once again denied the request for ADR
(NYSCEF Doc. No. 6). It observed that “In summary, the sergeant is familiar with the condition
called moyamoya disease which is a congenital genetically-caused condition and also the
disorder with the carotid artery in the skull which becomes blocked or narrowed, reducing blood
152035/2022 KIM, RORY vs. SEWELL, KEECHANT ET AL Page 2 of 4
Motion No. 001
2 of 4
[* 2]
INDEX NO. 152035/2022
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/11/2024
flow. . . . This may possibly be due to certain genetics and practices in those populations.
Apparently neurologic experts now consider this as a direct cause of a stroke as to any
contribution by hypertension; there is no evidence that he has had hypertension” (id. ¶ 10).
The Board of Trustees then voted on petitioner’s application. The result, a 6-6 tie, meant
the denial of petitioner’s request for ADR. Petitioner insists that respondents’ denial of his
application for ADR was arbitrary and capricious because respondents failed to adequately rebut
the presumption provided by the Heart Bill. He claims that respondents conveniently ignored the
clear evidence of hypertension as demonstrated by petitioner’s high blood pressure readings
during his examinations. Petitioner questions respondents’ assertion that his stroke was unrelated
to hypertension.
In opposition, respondents assert that they satisfied their burden to rebut the Heart Bill
presumption on the ground that petitioner’s stroke was likely caused by a congenital disease
called Moyamoya disease. Respondents insist that there was no medical evidence that attributed
the stroke to petitioner’s police work or any other condition.
Petitioner did not submit a reply.
Discussion
“The Heart Bill [] provides essentially that any impairment of health caused by diseases
of the heart, resulting in total or partial disability or death of any fireman or policeman who
successfully passed a physical examination upon entry into the service shall be presumptive
evidence that it was incurred in the performance of duty unless the contrary be proved by
competent evidence” (Goldman v McGuire, 101 AD2d 768, 769, 101 AD3d 768 [1st Dept
1984]).
152035/2022 KIM, RORY vs. SEWELL, KEECHANT ET AL Page 3 of 4
Motion No. 001
3 of 4
[* 3]
INDEX NO. 152035/2022
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/11/2024
The Court observes that petitioner is absolutely entitled to the statutory presumption
provided under the Heart Bill due to his stroke. The Court, therefore, must consider whether or
not respondents met their burden to overcome this presumption. Here, the Court denies the
petition as the Medical Board attributed petitioner’s stroke to a congenital condition and not
related to his police work. “The statutory presumption of General Municipal Law § 207–k
(Heart Bill) was overcome by credible medical evidence that petitioner's disabling heart
condition is congenital and not related to occupational stress” (Pellicane v Kelly, 106 AD3d 558,
558, 965 NYS2d 803 [1st Dept 2013]).
“It was the sole province of the Medical Board and the Board of Trustees, not the court,
to resolve conflicts in the medical evidence” (Goodacre v Kelly, 96 AD3d 625, 626, 947 NYS2d
463 [1st Dept 2012] [reversing a Supreme Court decision granting ADR to petitioner in Heart
Bill case]). The fact is that the Medical Board concluded that petitioner’s condition was
congenital and, unfortunately, that forecloses petitioner’s request for ADR. The law is clear: this
Court cannot substitute its own judgment for that of the Medical Board or resolve disputes
between the Medical Board and petitioner’s doctor.
Accordingly, it is hereby
ADJUDGED that the petition is denied and this proceeding is dismissed without costs or
disbursements.
3/11/2024 $SIG$
DATE ARLENE P. BLUTH, 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
152035/2022 KIM, RORY vs. SEWELL, KEECHANT ET AL Page 4 of 4
Motion No. 001
4 of 4
[* 4]