Background
Gary Smiley was an FDNY paramedic and a September 11, 2001 first responder at the World Trade Center site. Beginning in 2013, he applied to the New York City Employees’ Retirement System (NYCERS) for performance-of-duty disability retirement under Retirement and Social Security Law § 607-b, citing World Trade Center-related conditions including chronic sinusitis and rhinitis, PTSD, GERD, and chronic dizziness. After years of proceedings — including multiple Medical Board evaluations and remands by the Board of Trustees — the NYCERS Medical Board ultimately denied his application in 2020, concluding that his sinusitis was not severe enough to preclude him from performing paramedic duties, in part because the condition could be managed with rinses and a nebulizer.
Smiley filed a CPLR Article 78 proceeding. The Supreme Court, Kings County granted the petition and annulled the Medical Board’s determination, but also awarded attorneys’ fees. The Board of Trustees (and related officials) appealed both rulings.
The Court’s Holding
The Appellate Division largely affirmed, upholding the annulment of the disability denial while reversing the attorneys’ fees award. The panel agreed with the Supreme Court that the Medical Board’s determination was arbitrary and capricious because it failed to engage with two critical, job-specific facts: (1) as an FDNY paramedic, Smiley could be required to respond to hazardous-material scenes — chemical spills, industrial fires — where his sinusitis would be aggravated by smoke and environmental irritants, as his treating physicians had specifically documented; and (2) the Medical Board’s suggestion that he could manage his condition with a dosing nebulizer multiple times daily failed to account for the reality of extended paramedic shifts in ambulances and confined spaces. A Medical Board may not simply ignore contradicting medical evidence or rely on a management plan that is impractical given the actual working conditions of the job.
However, the court reversed the attorneys’ fee award. In CPLR Article 78 proceedings, the general rule prohibits fee-shifting unless authorized by agreement, statute, or court rule — and none applied here. Because Smiley had not opposed the appellants’ contention on this point, the award was reversed without discussion of the merits.
Key Takeaways
- NYCERS Medical Board determinations on disability retirement must be evaluated in light of the applicant’s actual job duties and working environment — generic assessments untethered to the specific demands of the role are arbitrary and capricious.
- Treating physicians’ documentation of environmental triggers must be addressed; a Medical Board cannot disregard it by failing to refute the underlying conclusions.
- Attorneys’ fees are not available in CPLR Article 78 proceedings against NYCERS absent a statutory, contractual, or rule-based basis — even for a prevailing World Trade Center first responder.
Why It Matters
This decision matters for the hundreds of 9/11 first responders and their families navigating NYCERS and NYSLRS disability retirement systems. It reinforces that WTC-related qualifying conditions — sinusitis is enumerated at Retirement and Social Security Law § 2(36)(c) — cannot be dismissed by a Medical Board that fails to connect its evaluation to the specific hazards of the applicant’s job. Attorneys representing first responders in pension proceedings should document not only the medical diagnosis but also the specific occupational exposures and physical demands the condition makes impractical — and force the Medical Board to address that intersection directly. The fee-shifting holding is a reminder that practitioners should identify any statutory basis for fees at the outset of Article 78 pension litigation.