Article 78 Petitions

Article 78 Petitions and other Court Actions.

We regularly represent civil servants who are challenging pension denials in court.

We are experienced in and have cases at every court level, including in the state's highest court, the New York State Court of Appeals.

If you believe that you have been unfairly denied a pension, you may have only a short period of time to protect your rights. We may be able to help. Contact us for a no-cost consultation. We will provide you with a straightforward legal assessment concerning the merits of your case and a candid description of the process.

RECENT CASES

2012 Cruz v. Kelly. The NY County Supreme Court decided in favor of our client, a New York City Police Officer seeking a three quarter disability retirement based upon a World Trade Center disability. The Court's decision is based primarily on a finding, adopting our argument, that the Police Pension Fund's Medical Board ignored evidence of a long standing WTC condition in favor of a legally insufficient argument which attempted to place the cause of disability on other factors. The Police Pension Fund was also deemed to have failed to provide the officer with the legal presumption of causality provided by the WTC bill, Administrative Code 13-252.1.
2012 Betancourt v. Kelly. The NY County Supreme Court decided in favor of our client, a police officer seeking a three quarter disability retirement. The decision is an affirmation of a body of law stemming from the NYS Court of Appeals decision in Tobin v. Steisel which holds that a subsequent accident which causes an aggravation or exacerbation of a pre-existing injury or latent condition is the cause of disability. This decision confirms the principles in Tobin v. Steisel that the Courts can, and will, make judicial determinations requiring that the Police Pension Fund consider disability entitlement in cases where police officers (and other civil servants) suffer injuries which exacerbate or aggravate their conditions.
2011 Gorczynski v. Kelly. The NY County Supreme Court decided in favor of our client, a New York City Police Officer seeking a three quarter disability retirement based upon a World Trade Center disability. The Court’s decision is based primarily on a finding, adopting our argument, that the Police Pension Fund's Medical Board failed to provide the officer with the legal presumption of causality provided by the WTC bill, Administrative Code 13-252.1. The Court also agreed that the Medical Board failed to consider evidence supporting causality between the Police Officer’s WTC exposures and their acknowledged disability. The City has not appealed this judicial decision and thus, it will stand as final and a victory to the police officer and other first responders disabled in the line of duty.
2011 Barbuto v. Kelly. The NY County Supreme Court decided in favor of our client, a New York City Police Detective, seeking a three quarter disability retirement. The decision is based primarily on a finding, adopting our argument, that the Police Pension Fund's Medical Board made conclusory statements unsupported by evidence and contradicted by numerous reports by the officer's treating doctors. The Court further determined that the Medical Board failed to specify evidence to support its conclusion.The City has not appealed this judicial decision and thus, it will stand as final and a victory to the police officer and other first responders disabled in the line of duty.
2011 Brown v. Kelly. We are representing a New York City Police officer in an Appellate Division, First Judicial Department case. We are challenging a Supreme Court decision, denying him an accidental disability retirement despite his recognised disability as the direct result of an accidental line of duty shooting. We believe this decision, which deemed the accidental shooting as merely "incidental," directly conflicts with the body of legal doctrine which defines an accident as a "sudden, fortuitous mischance, out of the ordinary and injurious on impact."
2011 Seiferheld v. Kelly. Our state's highest court, the NYS Court of Appeals, decided this case in our favor. This is an important, and broad ranging decision from the Court of Appeals, because it affirms, in the strongest possible terms, that pension benefits cannot be terminated without explicit statutory authority and that it is the purview of the Board of Trustees of the Police Pension Fund, and not the City Law Department, to interpret statute and effect pension actions. Congratulations, Jim. Read the Court's decision.
2011 Richter v. Kelly On behalf of the NYPD Captains Endowment Association ("CEA") President, Roy Richter, we successfully challenged a Police Pension Fund Board decision which refused to allow a vote on a resolution President Richter brought before the Board of Trustees on behalf of two CEA members. The Court, deciding in our favor, held the Board “has no authority to refuse to vote on a resolution, whether that resolution pertains to an individual case or to the interpretation of a statute generally.” Most significantly, the Judge held that it is the purview of the Board and not the City Law Department to interpret statutes. The Judge specifically noted that “every time the Board votes on an individual determination it is implicitly interpreting statute." The City has withdrawn its appeal of this judicial decision and thus, it will stand as final and a Victory to CEA President Roy Richter, his police members and to the Boardmembers of the Police Pension Fund. This case was featured in the September 2011, CEA Newsletter (see page 5).
2011 Torres v. Kelly. The NY County Supreme Court decided in favor of our client, a police officer seeking a three quarter disability retirement. The decision is based primarily on Tobin v. Steisel and the legal doctrine which treats a subsequent accident which causes an aggravation or exacerbation of a pre-existing injury or latent condition as the cause of disability. What is unusual about this decision is it is not a typical remand to the Police Pension Fund's Board of Trustees, but rather a Judicial Order to retire the police officer with Accident Disability Retirement benefits, retroactive to her retirement date, with interest. We believe this decision sends a strong message that the Courts can, and will, make judicial determinations of disability entitlement in cases where the Board of Trustees does not follow governing law. On August 23, 2011, this Court rejected the City's rearguement and affirmed in no uncertain terms that the denial of this Police Officer's Three-Quarter retirement was "arbitrary and capricious and an abuse of discretion."
2011 Walsh v. Scopetta. New York's State's highest court, the NYS Court of Appeals, has decided our case on behalf of Robert Walsh, a NYC firefighter disabled as the result of a line-of-duty assault he suffered when struck with a chair. The Appellate Court initially denied his claim under the reasoning that the intentional assault was not accidental. The Court of Appeals in an affirming and abbreviated decision, skirted the main issue which remains undecided by the Court: Willfulness as it relates to first responders assaulted during the performance of duty. A digest of the facts of the case.