Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and oral argument on August 14, 2024, pursuant to Article 78 of the CPLR, Petitioner moves for a Judgment and Order reversing Respondent New York City Employees' Retirement System's ("NYCERS") final administrative determination denying his application for disability retirement. For the reasons stated herein, Petitioner's requested relief is GRANTED to the extent that the matter is remanded back to the Medical Board for further consideration consistent with this Decision.

The instant matter arises out of applications for disability retirement benefits filed by [*2]Petitioner on April 9, 2019 ^[FN1] and August 4, 2021.^[FN2] Petitioner worked as an inspector with the New York City Department of Housing Preservation and Development ("HPD") and in both applications indicated that he was incapacitated for further service due to a lower back injury that occurred when he slipped and fell on stairs while working on September 1, 2016.^[FN3] On March 20, 2023, the NYCERS Medical Board recommended the denial of Petitioner's applications.^[FN4] Specifically, the Medical Board reviewed multiple reports from the Petitioner's treating physicians dated between 2016 to 2019, a New York State Worker's Compensation Board C-4 form, and MRI images of the Petitioner's lumbar spine dated January 3, 2017.^[FN5] The Medical Board then determined that the documentary and clinical evidence failed to demonstrate that Petitioner was disabled and could not perform the duties of an HPD inspector. The Medical Board concluded:

" . . . that the documentary and clinical evidence failed to substantiate that Titus Pierce is disabled from performing duties of Inspector with HPD. The Medical Board notes that the applicant has not received formal treatment directed towards the lumbar spine since 2018 or 2019 and is not receiving pharmacologic management and has not received injection treatment. Furthermore, the applicant report of physical therapy is limited to only two to three weeks over five years ago. On today's examination, the applicant exhibits non-physiologic findings and findings suggested of symptom magnification with noted give way weakness and pain reported at the lumbar spine with cervical and upper extremity range of motion. Overall, the Medical Board does not find objective findings on today's assessment that would support disability."^[FN6]

On August 10, 2023, the NYCERS Board of Trustees adopted the Medical Board's recommendation and denied Petitioner's application for disability retirement.^[FN7] On December 11, 2023, Petitioner brought the instant proceeding seeking to reverse Respondent's denial of his applications for disability retirement benefits.^[FN8] Respondent opposes arguing its denial was [*3]supported by credible medical evidence and is therefore neither arbitrary or capricious.^[FN9]

This Court is limited by CPLR's Article 78 to a review of the record before Respondent and to the question of whether its determination was arbitrary and capricious based upon that record.^[FN10] "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." See Pell v Board of Educ., 34 NY2d 222, 231 (1974). If a rational basis for its determination exists, the decision of the administrative body must be sustained.^[FN11] A court cannot substitute its judgment for that of the agency so long as the agency's decision is rationally based on the record.^[FN12]

The "Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence." Borenstein 88 NY2d at 761. "Substantial evidence has been construed in disability cases, as requiring some credible evidence" Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d 882, 883 (2d Dept 2022); see Borenstein, 88 NY2d at 760; Boyd, 202 AD3d at 1083; Gibbs v New York City Employees' Retirement Sys., 161 AD3d 980, 981 (2d Dept 2018); Hernandez v New York City Employees' Retirement Sys., 148 AD3d 706, 707 (2d Dept 2017). "Credible evidence has been described as evidence that proceeds from a credible source, which reasonably tends to support the proposition for which it is offered." Id.; see Sorenson v Cassano, 117 AD3d 1069, 1070 (2d Dept 2014). However, "determinations of the Medical Board and the Board of Trustees have been remanded where the medical evidence did not sustain the determination, the record did not reveal a rational evaluation of the medical evidence, or where the basis of a determination was not adequately articulated." Guillo v. New York City Employees' Retirement Sys., 39 Misc 3d 1208(A) (Sup. Ct., Kings County, April 4, 2013) (quoting Quinn v. Cassano, 29 Misc 3d 1203[A] [Sup. Ct., Kings County, September 3, 2010]).

Here, the basis of the Medical Board's determination was not adequately articulated and therefore the matter must be remanded back to the Medical Board for a new determination consistent with this decision. Specifically, the Medical Board's determination fails to articulate how the Petitioner is still able to perform the tasks and duties of his position as an HPD inspector [*4]instead of merely concluding " . . . the documentary and clinical evidence failed to substantiate that Titus Pierce is disabled from performing duties of Inspector with HPD."^[FN13] See Id. at 4. Furthermore, Respondent's decision failed to address the findings of Dr. Vora, Petitioner's treating physician, who determined that Petitioner was disabled and should avoid "bending forward, lifting any weight greater than 5lbs, standing or sitting for any length of time continuously, pushing, pulling, twisting and turning,"^[FN14] nor adequately addressed its own examination findings that Petitioner had "limited thoracolumbar range of motion in all planes associated with subjective complaints of pain."^[FN15] Therefore, the Medical Board's decision in this matter can only be viewed as conclusory, the petition is granted to the extent that the matter is remanded back to the Medical Board for further consideration consistent with this Decision.

This constitutes the Decision and Order of the Court.