Matter of Anastasio v Kelly (2014 NY Slip Op 06870)
Matter of Anastasio v Kelly
2014 NY Slip Op 06870
Decided on October 9, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 9, 2014Tom, J.P., Friedman, Feinman, Gische, Kapnick, JJ.


13137 101014/11

[*1] In re Pierino Anastasio, Petitioner-Appellant,
vRaymond Kelly, etc., et al., Respondents-Respondents.
Jeffrey L. Goldberg, P.C., Port Washington (Jeffrey L. Goldberg of counsel) for appellant.
Zachary W. Carter, Corporation Counsel, New York (Keith M. Snow of counsel), for respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered May 7, 2013, which denied the petition to annul respondents' determination, dated October 14, 2010, denying petitioner's application for World Trade Center (WTC) accidental disability retirement benefits, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner challenges respondents' determination that he did not establish that his disabling condition, chronic fatigue syndrome (CFS), is a "qualifying physical condition," as defined by Retirement and Social Security Law § 2(36)(c)(v). Although petitioner's physicians opined that his CFS, which was diagnosed in about 2007, was related to his WTC exposure, credible evidence supports respondents' conclusion that it was causally related to two other physical conditions, mononucleosis and an acute viral infection caused by the Epstein-Barr virus, both unrelated to his WTC exposure (see Administrative Code of City of NY § 13-252.1[1][a]; Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268 [2012]; Matter of Quinn v Kelly, 92 AD3d 589 [1st Dept 2012], lv denied 19 NY3d 813 [2012]; see also Matter of Brennan v Kelly, 111 AD3d 407 [1st Dept 2013], lv denied __NY3d__ , 2014 NY Slip Op 76669 [2014]). Furthermore, even assuming that petitioner's condition was considered a "qualifying" condition, the evidence supports the finding that his past [*2]viral infections were sufficient to rebut any presumption of causation.
We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 9, 2014
CLERK


