

Matter of Dominguez v O'Neill (2020 NY Slip Op 00513)





Matter of Dominguez v O'Neill


2020 NY Slip Op 00513


Decided on January 23, 2020


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 January 23, 2020

Gische, J.P., Mazzarelli, Webber, Gesmer, JJ.


10869 100728/16

[*1] In re Nestor Dominguez, Petitioner-Appellant,
vJames O'Neill, etc., et al., Respondents-Respondents.


Goldberg & McEnaney, Port Washington (Timothy McEnaney of counsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York (Anna Wolonciej Gottlieb of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered August 2, 2018, which, inter alia, denied the petition to annul respondents' determination denying petitioner accidental disability retirement (ADR) benefits, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The denial of ADR benefits was not arbitrary and capricious. The Medical Board was entitled to rely on its own examination of petitioner, which provided credible evidence for its finding that he was not disabled (see Matter of Khurana v Kelly, 73 AD3d 497 [1st Dept 2010], lv denied 15 NY3d 715 [2010]). Furthermore, petitioner did not provide any medical evidence to the contrary.
Petitioner's argument that the Medical Board was biased against him and that he was entitled to a Board that did not include the doctors who participated in a prior determination that he suffered from mental illness is without merit. Participation in the prior proceedings involving petitioner is insufficient to demonstrate bias, and nothing in the record supports this claim (see Matter of Ortega v Kelly, 15 AD3d 313, 314 [1st Dept 2005]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 23, 2020
CLERK


