The opinion
Pastrana v New York City Fire Pension Fund
2024 NY Slip Op 31118(U)
April 2, 2024
Supreme Court, New York County
Docket Number: Index No. 160515/2023
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. 160515/2023
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 160515/2023
OBRIAN PASTRANA,
MOTION DATE N/A
Petitioner,
MOTION SEQ. NO. 002
-v-
NEW YORK CITY FIRE PENSION FUND, BOARD OF
TRUSTEES OF THE NEW YORK CITY FIRE PENSION DECISION + ORDER ON
FUND, CITY OF NEW YORK MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52,
53, 54,
were read on this motion to/for REARGUMENT/RECONSIDERATION .
Petitioner’s motion to reargue is granted and, upon rearguement, the Court adheres to its
prior determination although for the reasons described below.
Background
In this proceeding concerning petitioner’s application for Accident Disability Retirement
(“ADR”) benefits, this Court previously denied the petition (NYSCEF Doc. No. 46).
Petitioner explains that this Court misapprehended the fact that petitioner was evaluated
twice by the Medical Board for two separate physical conditions. One evaluated him for his
respiratory function and the other for his cardiovascular function. He acknowledges that he did
not contest the Medical Board finding that found that his respiratory tract was fine but that he
does challenge the Medical Board finding regarding his cardiovascular function. That decision
granted him Ordinary Disability Retirement (“ODR”). Petitioner argues that the primary issue in
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this proceeding is whether his permanent disability in the cardiovascular Medical Board
evaluation is an accident for purposes of granting him ADR.
The Court observes that respondents filed opposition but the Court did not consider it as
it was not filed timely; the notice of motion set the return date for April 1, 2024 at 9:30 a.m. and
respondent filed its opposition in the afternoon on April 1, 2024.
Discussion
As an initial matter, petitioner is correct that this Court misapprehended the fact that there
were two separate Medical Board findings and apologizes for the need to make the motion to
reargue. The Court will therefore address the key issue according to petitioner—whether his
apparent adverse reaction to receiving the COVID-19 is an accident that entitles him to receive
ADR.
“In an article 78 proceeding, the issue is whether the action taken had a rational basis and
was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d
587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious
when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination
has a rational basis, it will be sustained, even if a different result would not be unreasonable”
(id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to
the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale
& Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]).
“Applying for ADR involves a two step process. Initially, the pension fund’s Medical
Board conducts a physical examination, interviews the applicant, and reviews the submitted
evidence, before submitting a recommendation to the Board of Trustees. In the second step, the
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Board of Trustees votes to either grant or deny ADR benefits” (Stavropoulos v Bratton, 148
AD3d 449, 450, 50 NYS3d 2 [1st Dept 2017]).
“ADR benefits are awardable only where the individual's disability was the natural and
proximate result of a service-related accident, i.e., a sudden, fortuitous mischance, unexpected,
out of the ordinary, and injurious in impact” (Rivera v Bd. of Trustees of N.Y. Fire Dept., 220
AD3d 584, 585, 198 NYS3d 680 [1st Dept 2023]). “In the context of ADR benefits, the Court of
Appeals has defined an accident as a sudden, fortuitous mischance, unexpected, out of the
ordinary, and injurious in impact, while an injury which occurs without an unexpected event as
the result of activity undertaken in the performance of ordinary employment duties, considered in
view of the particular employment in question, is not an accidental injury” (Pastalove v Kelly,
120 AD3d 419, 420, 991 NYS2d 39 [1st Dept 2014]).
Here, petitioner was found to be permanently disabled after being evaluated for
cardiovascular functioning by the Medical Board, which awarded him ODR and the Board of
Trustees agreed. The Court finds that petitioner’s disability was not the result of a service-
related accident under the caselaw cited above. In this Court’s view, getting a vaccine is not an
unexpected event. It is more akin to the case cited by respondents in their initial opposition,
Rivera, where a firefighter was awarded only ODR when he suffered a leg injury after becoming
dehydrated while training as a firefighter (Rivera, 220 AD3d at 584-85). The First Department
found that such an injury was “incidental—not accidental” and that it arose out of his
performance of “routine duties, not as a result of an unexpected event” (id. at 585). The
appellate court also found that the dehydration was “a foreseeable risk” (id.).
Here, getting the vaccine was not an unexpected event – it was not an accident.
Petitioner knew he was getting the vaccine and was complying with the vaccine mandate.
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Unfortunately, he experienced incidental consequences from that expected vaccine. Of course,
the bad consequences he suffered led to him receiving ODR. But this Court is unable to find that
petitioner’s physical ailments were the result of an accident as defined under the relevant
caselaw. As noted above, an accident for purposes of awarding ADR arises where a firefighter
suffers injuries from a sudden event rather than from adverse consequences from a planned
event.
Accordingly, it is hereby
ORDERED that petitioner’s motion to reargue is granted and, upon reargument, this
Court adheres to its previous determination albeit on the different basis described above; and it is
further
ADJUDGED that the petition is denied and this proceeding is dismissed without costs or
disbursements.
4/2/2024 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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