9492-9493. IN RE DEMETRIUS SAMADJOPOULOS, pet-ap, v. NEW YORK CITY EMPLOYEE’S RETIREMENT SYSTEM res-res — White & Case LLP, New York (Erika L. Shapiro of counsel), for ap — Michael A. Cardozo, Corporation Counsel, New York (Paul T. Rephen of counsel), for res — Judgment, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 26, 2011, denying the petition and dismissing the proceeding brought pursuant to CPLR article 78 to annul a determination of respondent Trustees of New York City Employees’ Retirement System (NYCERS), dated December 11, 2009, which denied petitioner’s application for World Trade Center (WTC) disability benefits, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the determination, and the matter remanded for further proceedings in accordance with this decision. Appeal from order, same court and Justice, entered January 26, 2011, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Administrative Code of the City of New York §13-252 provides that a police pension fund member who is physically or mentally incapacitated for the performance of service as a proximate result of such service shall be retired on an accident disability retirement (ADR) pension. The WTC Law (Administrative Code §13-252.1) amended this provision to address cases involving WTC injuries. The WTC Law established a presumption that “any condition or impairment of health… caused by a qualifying World Trade Center condition” as defined in the Retirement and Social Security Law (RSSL), “shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident… unless the contrary be proved by competent evidence” (§13-252.1 [1][a]). “Qualifying World Trade Center condition” is defined as, inter alia, “a qualifying condition or impairment of health” (RSSL §2[36] [a]), which in turn is defined as, inter alia, a qualifying physical condition, or a qualifying psychological condition, or both (§2[36][b]). “Qualifying physical condition” is defined to include, inter alia, “diseases of the upper respiratory tract,” “diseases of the lower respiratory tract, including but not limited to… asthma [and] reactive airway dysfunction syndrome,” and “diseases of the gastroesophageal tract, including… reflux disease” (§2[36][c]). “Qualifying psychological condition[s]” include post-traumatic stress disorder, anxiety, and/or depression (§2[36][d]).
