BILL NUMBER:  S1762A

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to judgments in favor of a petitioner in article 78
proceedings relating to disability pensions

 TITLE OF BILL :

An act to amend the civil practice law and rules, in relation to
judgments in favor of a petitioner in article 78 proceedings relating
to disability pensions

 PURPOSE OR GENERAL IDEA OF BILL :

To protect members of the public employee retirement systems from
having to endure repeat appeals from a retirement system determination
denying a disability pension when the reviewing Court finds that the
denial was arbitrary, capricious, and not supported by substantial
evidence.

 SUMMARY OF PROVISIONS :

Section one of the bill amends section 7806 of the Civil Practice Law
and Rules to allow a Court hearing an appeal from the pension or
retirement system of the State or civil division thereof where the
determination being reviewed is a denial of a disability pension to
              

review the facts of the case de novo, annul the determination below
and grant the disability pension.

Section two of the bill provides that this act shall take effect
immediately and shall apply to all appeals that have been filed but
not yet adjudicated.

 EXISTING LAW :

New law.

 JUSTIFICATION :

Frequently, applications for disability pensions are denied until the
application has been judicially reviewed and remanded. Even then,
there is no guarantee that the application will be granted and many
disabled retirement system members have to appeal to the Courts at
least one more additional time.

Fighting the denial of a disability pension is not inexpensive. The
disabled person will have to pay court costs and, most likely,
attorney's fees. There are many instances where the Court has agreed
with the disabled person and remanded the determination for action not
inconsistent with the Court's decision and the disability pension
application is still denied. This cycle needs to end.

This bill reverses a long line of Court of Appeals decisions reversing
Appellate Division decisions that granted disability pensions to the
petitioners. (See, Matter of Borenstein v NYCERS, 88 N.Y.2d 756, 761
(1996) "In the end, the Appellate Division here did what it should not
do: "substitute (its) own judgment for that of the Medical Board"
(quoting Matter of Santoro v Board of Trustees, 217 A.D.2d 660,
660-661, citing Matter of Brady v City of New York, 22 N.Y.2d 601;
Matter of Appleby v Herkommer, 165 A.D.2d 727)). By allowing reviewing
courts to substitute their judgment when they find that a
determination denying a disability pension is arbitrary and capricious
and not supported by substantial evidence, the cycle of application
denial, appeal, remand will be broken. Breaking this cycle will save
the disabled applicant's resources the retirement systems' resources
and judicial resources because the same application for and
determination regarding a disability pension will not have to be
reviewed multiple times.

 PRIOR LEGISLATIVE HISTORY :

New bill

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately and shall apply to all appeals
that have been filed but not yet adjudicated.