© 2020 by UNGARO CIFUNI & JAFFE, Attorneys at Law LLP. 

Disclaimer: Prior results do not guarantee a similar outcome.

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ARTICLE 78

PETITIONS

We regularly represent civil servants who are challenging pension denials in Supreme Court, the Appellate Division, and the state's highest court, the New York State Court of Appeals. 

 

If you believe that you have been unfairly denied a pension, you  only have 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

  • 2019 Galluccio v. O'Neill.  The New York State Supreme Court, Honorable Arlene Bluth, presiding, decided in favor of our client, a New York City Police Officer, whose application for Accident Disability Retirement was denied because the Board of Trustees of the New York City Police Pension Fund arbitrarily concluded that his injury, sustained when his service weapon became stuck in his seat belt while responding to a domestic dispute, was not an Accident as defined.  Justice Bluth granted our Petition, and remanded the matter solely for the calculation of benefits. 

  • 2019 Nazario v. O'Neill.  The New York State Supreme Court, Honorable Shlomo S. Hagler, presiding, decided in favor of our client, a New York City Police Officer, whose application for Accident Disability Retirement was denied because of an unrelated off-duty event.  The Court found that the Medical Board inappropriately attributed the cause of a member's disability to an off-duty event, ignoring the LOD injury that had led to the member's injury and multiple surgeries.  The Court remanded the matter back to the Medical Board for further review consistent with the evidence and the Court's directives.

  • 2019 Diaz v. O'Neill.  The New York State Supreme Court, Honorable Arlene Bluth, presiding, decided in favor of our client, a New York City Police Sergeant.  The Court found that the NYC Police Pension Fund's denial, based on the mere allegation that our client was not on-duty when he was injured, supported only by an improper (and fruitless) investigation conducted by the Police Commissioner's representative, was arbitrary and capricious.  

  • 2018 Merlotto v. Bratton.  The New York State Supreme Court, Honorable Lucy Billings, presiding, decided in favor of our client, a disabled New York City Police Lieutenant, for the second time and now final time.  Our client's application for Accident Disability Retirement under GM 207k ("the Stroke Bill") was initially denied when the Medical Board failed to properly consider evidence of a stroke and apply the presumption of causality as required by law.  On remand, the Medical Board again denied our client's application, in violation of the Court's remand order.  On a second Article 78 Petition, Justice Billings remanded the matter, yielding an approval at the Medical and Pension Boards.

  • 2015 Richter v. Cardozo.  The Appellate Division, First Department, decided in favor of our client, CEA President Roy Richter, in rejecting the City Law Department's contention that it was free to interpret statute on behalf of the NYC Police Pension Fund's Board of Trustees.  The Appellate Division confirmed the longstanding principle that such authority is vested solely in the Board of Trustees, subject to judicial review.  The facts of this case concerned the interpretation of the Safeguards statute, which governs disability retirees with fewer than 20 years of service.  The Law Department attempted to change the current standard of "full police duty" to a lesser standard defined as any gainful occupation including desk work.  The Appellate Division explicitly concluded that the Law Department's efforts to direct action (to the detriment of disability retirees) was "untenable" and "inconsistent" with its limited role as advisor.  See the decision here.

 

  • 2014 ​Merlotto v. Bratton.  The Court decided in favor of our client, a disabled police officer, holding that the Police Pension Fund failed to consider evidence of stroke or the presumption of causality provided by the 207k Stroke Bill which links strokes to the stress of police work.

 

  • 2013 Torres v. Kelly.  The NY County Supreme Court decided in favor of our client, a detective 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. On an appeal filed by the City, the  Appellate Division remanded the matter solely for a determination as to whether her injury was an accident or an incident.  This decision was reported in the New York Law Journal.  Our client has subsequently been granted a three quarter Accident Disability Retirement based on the legal doctrine set forth in Lichtenstein and its progeny of cases.

 

  • 2013 Cruz v. Kelly.  The NY County Supreme Court again decided in favor of our client, a police officer seeking a three quarter disability retirement based upon a World Trade Center disability.  The Police Pension Fund Medical Board had refused to follow the mandate of the Court in its earlier decision, forcing us to bring a second lawsuit.  The Court specifically noted "Based on this history, this Court is forced to conclude one of two things: either the Medical Board and the Pension Board truly do not understand the meaning of §13-252.1(1)(a) of the Administrative Code of the City of New York and how its presumption in favor of an affected Police Officer works, or they do understand the law but choose to ignore its mandates, arguably with hopes of eventually wearing the injured officer down."  Our client has subsequently been granted a three quarter accident disability retirement under the WTC Disability Law.

 

  • 2013 Richter v. Kelly.  On behalf of the NYPD Captains Endowment Association ("CEA") President, Roy Richter and NYPD Police Surgeon Lea Dann, M.D., we successfully challenged a Police Pension Fund decision which refused to recognize the longstanding right of Police Surgeons to protection under the Heart Bill. The Court adopted our argument, citing well established legal and administrative precedent and the clear intent of the legislature, finding Police Surgeons entitled to Heart Bill benefits as a matter of law.  The Court specifically noted that the denial by the NYPD Police Pension Fund was both “arbitrary and capricious.”  Rather than remand the matter back to the Board of Trustees, the Court specifically directed that Police Surgeon Dann be retired with Accident Disability Retirement.  This decision shall protect future NYPD surgeons and other police supervisors from future attempts to deny them the protections under the Heart Bill. This victory at the Appellate Division was reported in the New York Law Journal.  Congratulations to CEA President Richter and to Dr. Dann.  

 

  • 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 board members 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 reargument 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.