Nilda Macri Respondent v Raymond Kelly

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92 A.D.3d 53, *; 935 N. Y.S.2d 295, **;2011 N. Y. App. Div. LEXIS 9381, ***; 2011 NY Slip Op 9542

In the Matter of Ni lda Macri, Respondent, v Raymond W. Kel ly, as Police Commissioner of theCi t y of New York, et al., Appellants. Index 115286/09

5907SUPREME COURT OF NEW YORK, APPELLATE DNISION, FIRST DEPARTMENT

92 A.D.3d 53; 935 N.Y.S.2d 295; 2011 N.Y. App. Div. LEXIS 9381; 2011 NY Slip Op 9542

December27, 2011, DecidedDecember 27, 2011, EnteredSUBSEQUENT HISTORY: Leave to appeal granted by Matter of Macn v. Kelly, 18 N.Y.3d 810,967 N.E.2d 706, 2012 N.Y. LEXIS 605, 944 N.Y.S.2d 481 (2012)Affirmed by Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund,Art. II, 20 N.Y.3d 268, 982 N.E.2d 600, 2012 N.Y. LEXIS 3635, 958 N.Y.S.2d 680 (N.Y., Dec. 13,2012)PRIOR HISTORY: Appeal from an order and judgment (one paper) of the Supreme Court, NewYork County (Jane S. Solomon, J. ) , entered May 10, 2010, in a proceeding pursuant to CPLRarticle 78. The order and judgment granted the petition seeking, among other things, to annulrespondents' decision to disapprove the designation of the death of petitioner's husband as aline-of-duty World Trade Center death, and to compel such designation.Matter of Macri v. Kelly, 28 Misc. 3d 504, 900 N.Y.S.2d 839, 2010 N.Y. Misc. LEXIS 1091 (2010)CASE SUMMARYPROCEDURAL POSTURE: Respondents, Medical Board and Police Pension Fund Board ofTrustees, appealed .an order and judgment (one paper) by the New York County SupremeCourt (New York) that granted peti t ioner widow's CPLR art. 78 petition seeking, inter alia, toannul tl1ei r decision to disapprove the designation of her husband's death as a line-of-dutyWorld Trade Center (WTC) death, and to compel such designation.OVERVIEW: The widow's husband, a police officer, was a first responder during the terroristattacks on September 11, 2001. He inhaled significant quantities of dust and smoke caused bythe collapsing building. Thereafter, he performed approximately 350 hours of duty in therescue, recovery, and cleanup operations. In 2002, he visited an orthopedic surgeon,complaining of a sudden onset of aching pain in his left thigh . Shortly after undergoing aseries of diagnostic tests, the officer was diagnosed with the malignant lytic sacral lesion and

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lung carcinorna that killed him. The appellate court found, inter alia, that the respondents didnot produced credible evidence to rebut the WTC presumption in Administrative Code of theCity of New York, 13-252.l(l)(a) accorded to the widow's claim fo r accidental line-of-dutydeath benefits. There was no question that the officer's temporal duration at Ground Zero andFresh Kills far exceeded the minimum 40 hours required by Retirement and Social SecurityLaw 2(36)(g) to invoke the WTC presumption. Consequently, the widow was entitled to art.78 relief.OUTCOME: The order and judgment were affirmed.

CORE TERMS: cancer, line-of-duty, exposure, site, credible, lung cancer, ground zero,causation, credible evidence, designation, qualifying, oncologist, responder, decedent, rebut,unidentified, accidental, pension, scan 1 competent evidence, retirement, disability, proximate,doubling, brain, preexisting condition, demonstrating, aggressive, diagnosis, nonsmoker

LEXISNEXIS HEADNOTES '-Hidef:v1c!ence > Inferences & Presumptions > Presumptions > General Overview +.'uPensions & Benefits Law > Governmental Employees > Police PensionsHNl.,Although the burden of proof with respect to demonstrating entitlement to benefitsusually rests with a claimant at the administrative level, the Legislature has provideda presumption in favor of accidental line-of-duty causation involving first responders,including personnel of the New York Police Department, who performed recovery or

other duties at the World Trade Center (WTC) site, Fresh Kills Land Fill, temporarymorgues and other specified locations alter the 9/11 attacks. This WTC presumptionplaces on the respondents the initial burden of demonstrating that a petitioner with aqualifying condition is not entitled to benefits, and is codified in Administrative Codeof the City of NY 13-252.l(l)(a). More Like This Headnote IShepardize: Restrict By HeadnoteEvidence > Inferences & Presumptions > Presumptions > General Overview t uPensions & Benefits Law > Governmental Employees > Police Pensions t;';HN2.,See Administrative Code of the City of NY 13-252.l( l)(a).Pensions & Benefits Law > Governmental Employees > Police Pensions 4;;"

H N 3 ~ A d m i n i s t r a t i v e Code of the City of NY 13-252.1(4) provides that i f a member whomeets the criteria set forth in 13-252.l(l)(a) dies in active service from aqualifying World Trade Center condition caused by such member's participation in theWorld Trade Center rescue, recovery, or cleanup operations, then unless the contrarybe proven by competent evidence, such member shall be deemed to have died as anatural and proximate result of an accident sustained in the performance ofduty. More Like This Headnote I Shepardize: Restrict By Headnote

Pensions & Benefits Law > Governmental Employees > Police Pensions .;,.-HN4.t,Retlrement and Social Securi ty Law 2(36) provides the time frames that a claimant

must have performed duties at the specified locations and the qualifying physical andpsychological conditions that resulted from those duties that give rise to his or herclaim. section 2(36)(c)(v) specifically defines "cancer" as a qualifying physical

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condition. More like This Headnote I Shepardize: Restrict By HeadnoteAdministrative Law > Judicial Review > Standards of Review > General Overview .;;';!Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review ~ ..Administrative Law > Judicial Review > Standards of Review > Substantial Evidence ~ JPensions & Benefits Law > Governmental Employees > Police Pensions +:uHNS,.Generally, the standard of review by which a reviewing court assesses the PolicePension Fund Board of Trustees' administrative determination is either th e arbitraryand capricious standard, CPLR 7803(3), or the substantial evidence standard, CPLR

7803(4). Where, however, the Police Pension Fund Board of Trustees' decision isreached as a result of a tie vote, the standard of judicial review is necessarilydifferent. In such circumstances, the reviewing court may not set aside the Board ofTrustees' denial of accidental disability retirement resulting from such a tie voteunless it can be determined as matter of law on the record that the disability was thenatural and proximate result of a service-related accident. More Like This Headnote IS(lepardize: Restrict By Headnote

Administrative Law > Judicial Review > Standards of Review > General Overview f:7JAdministrative Law > Judicial Review > Standards of Review > Substantial Evidence ~Pensions & Benefits Law > Governmental Emp loyees > Police Pensions .;.,HN6,.In cases where there has been a tie vote, a reviewing court ma y only disturb the final

award by finding causation established as a matter of law, and as long as there wasany credible evidence of lack of causation before the Police Pension Fund Board ofTrustees, its determination must stand. More Like Ti1is Headnote IShep Judicial Review > Standards of Review > General Overview f.:;1Administrative Law > Judicial Review > Standards of Review > Substantial Evidence . ; ; ;HN7,.In an administrative context, credible evidence must proceed from a credible sourceand reasonably tends to support the proposition fo r which i t is offered and must be

evidentiary in nature and not merely a conclusion of law, nor mere conjecture orunsupported suspicion. More Like This Headnote I Shepardize: Restrict By Headnote

Adrninistrative Law > Jud icial Review > Standards of Review > General OverviewAdministrative Law> Judicial Review > Standards of Review > Substantial EvidencePensions & Benefits Law > Governmental Emp loyees > Police Pensions ~ " ' ;HNB,.In the context of police retirement, fo r a reviewing court to uphold a determination of

no causation, an administrative decision must be based on objective medical evidenceor a rational, fact-based medical explanation. The facts of each case must thereforeplay a significant role in this determination. More Like This Headnote

HEADNOTES /SYLLABUS .:: Hide

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HEAD NOTES

Civil Service -- Retirement and Pension Benefits -- World Trade Center Presumption - Standard of Review1. In proceedings challenging a determination denying an applicant certain pension benefits,although the burden of proof with respect to demonstrating entitlement to benefits usually restswith the claimant at the administrative level, the Legislature provided a presumption in favor ofaccidental line-of-duty causation involving first responders, including personnel of the New YorkCity Police Department, who performed recovery or other duties at the World Trade Center andother specified locat ions after the 9/11 attacks. Accordingly, in a proceeding to annulrespondents' decision to disapprove the designation of the death of petitioner's police officerhusband as a line-of-duty World Trade Center death and to compel such designation, thepresumption placed on respondents the initial burden of demonstrating that petitioner'sdecedent, who was on duty at the Trade Center and developed a qualifying condition, was notentitled to benefits (see Administrative Code of City of NY 13-252.1 [1 ] [a)).Civil Service -- Retirement and Pension Benefits - - World T rade Center Presumption -Preexis ting Condition2. The conclusion of the New York City Police Pension Fund's Medical Board disapproving thedesignation of the death of petitioner's police officer husband as a line-of-duty World TradeCenter (WTC) death was not supported by credible evidence where the Board relied onunidentified "doubling time" literature, which was not based on the f irst-responder population, toconclude that decedent's cancer was a preexisting condition and unrelated to the events of 9/11.Credible evidence must proceed from a cred ible source and reasonably tends to support theproposition for which it is offered and must be evidentiary in nature and not merely a conclusionof law, nor mere conjecture or unsupported suspicion. Here, a chest X-ray of decedent taken on9/11 showed no indication of any pulmonary cancer. While decedent's cancer was a highlyaggressive form of cancer, that fact, standing alone, did not rebut the presumption in favor ofaccidental line-of-duty causation involving first responders, including personnel of the New YorkCity Police Department, who performed recovery or other duties at the WTC and other specifiedlocations after the 9/11 attacks (see Administrative Code of City of NY 13-252.1 [1 ] [a]).Indeed, decedent's oncologists stated that his diagnosis of stage 4 cancer "a t such a young agecould be ascr ibed to 9/11 type exposure, " and that the rapid growth and spread of the cancermade it more reasonable than not , given his nonsmoker status and health prior to 9/11, that thecancer was contracted because of his exposure to the high levels of carcinogens known to bepresent at Ground Zero. The Board dismissed without addressing that evidence and did notexamine the basis fo r the conclusion that exposure to the known toxins at the WTC site was theproximate cause of decedent's admittedly unusually aggressive cancer, a significant omissionwhich undermined it s conclusion.COUNSEL: [ *** 1] Michael A. Cardozo ..,,.. / , Corporation Counsel, New York City (Keith M. Snow ..,,., Paul Rephen ..,,. and Inga Van Eysden ..,,. of counsel), for appellants.Michael T. Murray ..., New York Ci ty (Christopher J. McGrath ... of counsel), for respondent.JUDGES: Luis A. Gonzalez ..., P.J., Peter Tom ..,, John W. Sweeny, Jr ..., Dianne T. Renwick ..., JJ.Ail concur.OPINION BY : John W. Sweeny, Jr ..,,.OPINION

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Get a Document - by Party Name - macri AND city Page 5of10[*54] [**296] Respondents appeal from an order and judgment (one paper) of the SupremeCourt, New York County (Jane S. Solomon, J.), entered May 10, 2010, which granted this article78 petition seeking, inter alia, to annul their decision to disapprove the designation of the deathof petitioner's husband as a line-of-duty World Trade Center death, and to compel suchdesignation.

Sweeny ..-, J.The issue before us is whether respondents produced credible evidence to rebut the World TradeCenter presumption (Administrative Code of the City of New York, 13- 252.1 [1] [a]) [**297]accorded to petitioner's claim for accidental line-of-duty death benefits. We hold that, in thiscase, they did not.[*55] Petitioner's decedent Frank Macri was appointed as a New York City police officer onFebruary 1, 1995. He was a first responder during the terrorist attacks on September 11, 2001.When the first tower collapsed, [***2] building debris struck Macri, knocking him to the groundand causing lacerations to his left arm, right leg, and both corneas. He inhaled significantquantities of dust and smoke caused by the collapsing building. Macri received treatment for hisinjuries that day at New York University Medical Center. As part of that treatment, he underwenta chest X ray that revealed no evidence of cancer in his lungs.

Subsequent to September 11, Macri performed approximately 350 hours of duty in the rescue,recovery and cleanup operations afte r the attack. He worked at Ground Zero until October 1,2001, and at Fresh Kills Landfill from November 1, 2001 to early January 2002.On July 25, 2002, Macri visited orthoped ic surgeon Herbert Ja lens complaining of a "suddenonset of aching pain in his left thigh, starting about two or three weeks earlier." Jalens'examination report listed Macri as a 46-year-old nonsmoker who was "muscled and pumps iron."Jalens reported that Macri advised him of a similar episode in the spring "when he woke up oneday with pain in the buttock and thigh." Jalens referred Macri fo r an MRI of his lurnbrosacralspine.Within days, Macri underwent a series of diagnostic tests, including [***3] an MRI and CT scanof his lumbar spine, a whole body bone scan, a biopsy of his sacrum and a whole body PET scan.In August 2002, Macri was diagnosed with a malignant lytic sacral lesion and lung carcinoma.Macri underwent treatment for this condition but an MRI conducted on December 23, 2003revealed at least three metastases to his brain. By January 2005, Macri's "non-small cell lungcancer" had metastasized to his brain, liver, lungs and bones, finally taking his life on September2, 2007.On August 22, 2002, an application for ordinary disability retirement (ODR) was submitted onMacri's behalf. On March 8, 2006, Macri fi led a form known as a Notice of Participation in theWorld Trade Center Rescue, Recovery, or Clean-up Operations. On October 11, 2007, petitioner,Macri's widow, applied for World Trade Center (WTC) accidental line-of-duty combat deathbenefits, citing cancer as the qualifying physical condition.[*56] On October 31, 2007, the Medical Board Police Pension Fund Article I I (Medical Board)recommended approval of Macri's application fo r ODR and disapproval of petitioner's WTC line-ofduty application. The Medical Board found "that the find ings of metastatic lung cancer in[***4] July 2002 precludes the World Trade Center exposure as the cause of the officer'sdisease." This decision was based, inter alia, on Dr. Jalens' Ju ly 2002 report, as well theradiologist reports from Macri's MRI and CT scans, also taken in July 2002, which containedfindings of "abnormal bone density" and a "likely ... malignant lesion" in Macri's left sacralvertebral body. The Medical Board also considered Macri's medical records, pathology andradiation reports, the 2004 report of Macri's brain surgeon as well as the March 2004 brain MRIand CT scans indicating four metastatic lesions in his brain.

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Get a Document - by Party Name - macri AND city Page 6 of 10On April 9, 2008, the Police Pension Fund Board of Trustees (PPF Board) held its first session anddenied petitioner's application fo r WTC line-of-duty benefits. In its decision, the Board stated:"We do [**298] believe that the Medical Board's report rebuts the [WTC] presumption,"pointing to the Medical Board's Anding that metastatic lung cancer in July 2002 indicated acancer existing prior to 9/11, which rebutted the presumption that exposure at the WTC was thecause of the cancer.Petitioner's counsel asked fo r a Medical Board reconsideration, arguing that the Medical Board'sfinding of [***5] no causal connection between the disability and WTC exposure was notsufficient to rebut the WTC presumption. The PPF Board granted counsel's request and remandedthe matter to the Medical Board to consider "New Evidence and as per Verbatim minutes."On May 14, 2008, the Medical Board issued a memorandum adhering to its prior determination.The Medical Board noted that "there is substantial literature which quantitates the doubling timesof primary pulmonary lung cancers," and that based upon this literature, and Macri's etiology ofpresenting with lung cancer some 9 to 10 months after September 11, 2001, the cancer waspreexisting and therefore was not the result of WTC exposure. The Medical Board held that "this[i.e., the aforesaid unidentified literature] is competent evidence to rebut the premise of theWorld Trade Center Bill."On November 12, 2008, the PPF Board held its second session. Petitioner submitted a letter fromMacri's treating oncologist, stating that lung cancer was rare among young nonsmokers and that,while it was Impossible to state with absolute certainty [*57] Macri's lung cancer was related tohis work at Ground Zero, the "documented presence of high levels of carcinogenic[***6] substances in air/dust from the Ground Zero site, and increasing reports ofmalignancies in the group of first-responders all suggest a very plausible association" betweenMacri's work and the development of his lung cancer. Indeed, this oncologist opined that it wasmore reasonable than not that Macri's exposure at WTC was the cause of his lung cancer.Petitioner also submitted an e-mail from Macri's radiation oncologist which stated Macri'sdiagnosis with stage 4 cancer at "a young age could be ascribed to 9/11 type exposure." The PPFBoard again remanded this case to the Medical Board to consider this additional evidence.On March 18, 2009, the Medical Board issued a memorandum, which once again adhered to itsprior recommendations. The Medical Board stated that i t was "not aware of literature in theresponder population" relative to the incidence of cancer but did not "find that the onlyrebuttable evidence that can be presented would be based on data from the responderpopulation." The Medical Board discounted, without specifically addressing, the letters fromMacri's oncologists, stating those letters were merely an "attempt to raise a \ 'specter of doubt'as to the et iology being [ * * *7 ] caused by the World Trade Center exposure, but f[ound] thatthe known clinical course of deceased Officer Macri's disease In its advanced stage of metastaticdisease found in July 2002 is adequate evidence for rebuttal."On July 8, 2009, the PPF Board cast six votes in favor of designating Macri's death as a WTC lineof-duty death and six votes against, thus denying the application fo r line-of-duty benefits.Petitioner brought an article 78 proceeding seeking to annul the PPF Board's determination andcompel respondents to designate Macri's death as a WTC line-of-duty combat death. Noting that"no definition has been standardized for what constitutes proof by competent evidence forpurposes of rebutting the WTC presumption," the court determined that competent evidence wasessentially the same as credible [**299] evidence (28 Misc 3d 504, 511, 900 NYS2d 839[2010]). Applying that standard, Supreme Court found that respondents had not met theirburden of showing that Macri's medical condition was not caused by the performance of hisduties after the 9/11 terrorist attacks. The court particularly faulted the Medical Board's referenceto "unidentified 'doubling time' literature," which was admittedly based on anonresponder [*58] population, [***8] and which was never provided to petitioner, who hadrequested it. The court faulted the Medical Board's "attempt, without any credible medicalevidence, to compare these unidentified studies to Macri's situation, despite his different set offacts and letters written on his behalf from his treating doctors, who are current experts in the

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field." Since the PPF Board relied unquestionably on the Medical Board's findings in arriving at itsdetermination, the court granted the petition.[ l ]HNl ' : ; Although th e burden of proof with respect to demonstrating entitlement to benefitsusually rests with th e claimant at the administrative level, the Legislature has provided apresumption in favor of accidental line-of-duty causation involving first responders, includingpersonnel of the New York City Police Department, who performed recovery or other duties at theWorld Trade Center site, Fresh Kills Landfill, temporary morgues and other specified locationsafter the 9/11 attacks. This WTC presumption places on the respondents the initial burden ofdemonstrating that a petitioner with a qualifying condition is not entitled to benefits, and iscodified in Administrative Code 13-252.1 ( 1) (a) as follows:

HN2 +"Notwithstandlng any provisions [***9] of this code or of any general, specialor local law, charter or rule or regulation to the contrary, i f any condition orimpairment of health is caused by a qualifying World Trade Center condi tion asdefined in section two of the retirement and social security law, it shall bepresumptive evidence that it was incurred in the performance and discharge of dutyand the natural and proximate result of an accident not caused by such member'sown willful negligence, unless the contrary be proved by competent evidence."

HN3+Adrninistrative Code 13-252.1 (4) further provides that i f a member who meets thecriteria set forth above dies in active service from a

"qualifying World Trade Center condition ... caused by such member's participation inthe World Trade Center rescue, recovery or cleanup operations ... then unless thecontrary be proven by competent evidence, such member shall be deemed to havedied as a natural and proximate result of an accident sustained in the performance ofduty."

[*59] HN4+Retirernent & Social Security Law 2 (36) provides the time frames the claimantmust have performed duties at the specified locations and the qualifying physical andpsychological conditions which resulted [***10] from those duties that give rise to his or herclaim. Section 2 (36) (c) (v ) specifically defines cancer as a "qualifying physical condition."HNs+"Generally, the standard of review by which a reviewing court assesses the PPF Board'sadministrative determination is either the arbitrary and capricious standard (CPLR 7803 [3]) orthe substantial evidence standard (CPLR 7803 [4]; see Matter of Can fora v Board of Trustees ofPolice Pension Fund of Police Dept. of City of N. Y., Art. II, 60 NY2d 347, 351 , 457 NE2d 740, 469NYS2d 635 (1983]). Where, as here, however, the Board's decision is reached as a result of a tievote, the standard of judicial review ls necessarily different. In such circumstances, "thereviewing court may not set aside the Board of Trustees' denial of accidental disability retirementresulting from such .a tie vote unless 'i t can be determined as matter of [**300] law on therecord that the disability was the natural and proximate result of a service-relatedaccident'" (Matter ofMeyer v Board of Trt1stees of N. Y. City Fire Dept., Art. 1-8 Pension Fund, 90NY2d 139, 145, 681 NE2d 382, 659 NYS2d 215 (1997) quoting Canfora, 60 NY2d at 352; seealso Matter of Polak v Board of Trustees of N. Y. City Police Dept. Art. I I Pension Fund, 188 AD2d341, 591 NYS2d 21 [1992], [***11] Iv denied 81 NY2d 706, 613 NE2d 968, 597 NYS2d 936(1993]). HN6+1n cases where there has been a tie vote, "the reviewing court ma y only disturbthe final award by finding causation established as a matter of law, [and] as long as there wasany credible evidence of lack of causation before the Board of Trustees, its determination muststand" (Meyer at 145; see Canfora at 351).

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This case therefore turns on the question of whether there was "credible evidence" supportingthe PPF Board's determination with respect to lack of causation between the claimant's disabilityand his performance of duty at Ground Zero or other specified 9/11 related sites.While there is no precise definition of what constitutes "credible evidence" sufficient to rebut theWTC presumption, there are certain essential parameters that must be met. HN?+credibleevidence must "proceed[] from a credible source and reasonably tends to support the propositionfor which it is offered" and "must be evidentiary in nature and not merely a conclusion of law, normere conjecture or unsupported suspicion" (Matter of Meyer, 90 NY2d at 147). HNB+For areviewing court to uphold a determination of no causation, the decision must be based "onobjective medical [*60] evidence [***12] or a rational, fact-based medical explanation" (id. ).The facts of each case must therefore play a significant role in this determination.[2] Here, in add ition to Macri's identified medical records, the Medical Board relied onunidentified "doubling time" literature which was not based on the responder population tosupport its conclusion that his cancer was a preexisting condition and not WTC related. However,that conclusion is not supported by credible evidence.There is no question that Macri's temporal duration at Ground Zero and Fresh Kills far exceededthe minimum 40 hours required by Retirement and Social Security Law 2 (36) (g) to invoke theWTC presumption. Moreover, there is nothing in the medical records, other than the unidentified"doubling time" literature, to indicate that his cancer preexisted 9/11. Indeed, the chest X raytaken on 9/11 showed no indication of any pulmonary cancer. While it is true that Macri's cancerwas a highly aggressive form of cancer, that fact, standing alone, does not rebut the WTCpresumption . Indeed, Macri's oncologists stated that his diagnosis of stage 4 cancer "a t such ayoung age could be ascribed to 9/11 type exposure," and that the rapid [***13] growth andspread of the cancer made it more reasonable than not, given his nonsmoker status and healthprior to 9/11, that the cancer was contracted because of his exposure to the high levels ofcarcinogens known to be present at Ground Zero. The Medical Board dismissed withoutaddressing this evidence and did not examine the basis for the conclusion that exposure to theknown toxins at the WTC site was the proximate cause of Macri's admittedly unusually aggressivecancer, a significant omission which underm ines its conclusion (see Matter of Fernandez v Boardof Trustees of N. Y. Fire Dept. Pension Fund, Subchapter 2, 81 AD3d 950, 952, 917 NYS2d 280[2011]).[**301] Respondents' reliance on our decision in Matter of Maldonado v Kelly (86 AD3d 516,

927 NYS2d 344 [2011]) is misplaced . There, the petitioner evidenced symptoms prior to 9/11which later turned ou t to be a sarcoma, clearly evidence of a preexisting condition. The petitioneradmitted his cancer preexisted 9/11. However, having worked the minimum statutory 40 hoursat ground zero, he applied for WTC line-of-duty benefits, arguing that this work exacerbated hiscondition. Significantly, the petitioner's own medical providers essentially acknowledged that histime [***14] at the WTC site "suggests" that, although the exposure was not the etiology ofthe petitioner's cancer, it "does not rule out the possibility" [*61] that such exposureaggravated his cancer. The petitioner's doctor did not "even state that, in his medical opin ion, itwas more likely than not that the rapid growth of the tumor was related to petitioner's work atthe World Trade Center site" (id. at 520). The PPF Board, based on the Medical Board'sdetermination that there was no causal connection between the petitioner's cancer and his workat the WTC site denied his claim, finding that the WTC presumption was rebutted on the basis ofthe medical evidence submitted .In affirming Supreme Court's dismissal of the petitioner's article 78 proceeding, we specificallycautioned:

"This decision should not be viewed as a diluting of the World Trade Centerpresumption, which was enacted in recognition of the enormous sacrifice made bythose publ ic employees who assisted in the recovery from the World Trade Centerattacks. Rather, it reflects the unique facts of this case, where not even petitioner's

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own physician could offer rnore than a whol ly equivocal, speculative opinion oncausation" (id. [emphasis [***15] added]).

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In the case before us, we have the opposite situation. There is no evidence to support theMedical Board's conclusion, adopted by the PPF Board, that Macri's cancer was preexisting.Indeed, there is evidence that just the opposite was the case. Unlike Maldonado, Macri's time atvarious WTC sites was ex tensive. His oncologists provided a strong, c learly articu lated,experience-based medical opinion, f inding that the etiology of his cancer led to the conclusionthat it was more reasonable than not that his cancer was the result of his duty at WTC sites. Thisopinion was not addressed by the Medical Board, and, as in Matter of Fernandez underminedtheir conclusions.This case is closer to ou r decision in Matter of Bitchatchi v Board of Trustees of the N. Y. CityPolice Dept. Pension Fund, Art. I I (86 AD3d 427, 926 NYS2d 513 [2011]). There, the petitioner,who had worked in excess of 65 hours at various WTC sites, was diagnosed with rectal cancer inOctober 2002. She applied for line-of-duty benefits, claiming her cancer was a result of her WTCduties. The Medical Board concluded that, based on her prior history of ulcerative colitis andsurgery to correct th is condition almost 20 years prior to her diagnosis, [***16] and the size ofthe pe titioner's cancer mass on an October 2002 CT scan, the cancer was a condition thatpreexisted 9/11. The PPF Board agreed and denied her application.[*62] The petitioner brought an article 78 proceeding to overturn that determination. In finding

that the PPF Board fai led to adduce credible evidence sufficient to overcome the WTCpresumption, Supreme Court specifically cited the Medical Board's conclusory statement that"clinical data," no t otherwise specified, supported the Medical Board's conclusion that the size ofpetitioner's cancerous mass indicated a pre-9/11 origin. Since this "clinical [**302] data" wasnot part of the administrative record, the court found the conclusions of the PPF and MedicalBoards did not meet the credible evidence standard (see 2010 NY Misc. LEXIS 1643, 2010 NYSlip Op 30700(U] [2010]).We affirmed, f inding that there was

"no credible evidence to support the Medical Board's assertion that the size of tumormeant it began growing before September 11, 2001, and thus could not have beenthe result of or exacerbated by exposure. Nor [was] there credible evidence tosupport the Medical Board's conclusion that petitioner's cancer was caused by herepisode of ulcerative colitis [* * *17] and the corrective surgery, which occurrednearly 20 years prior to the onset of the cancer" (86 AD3d at 427-428).

Here, we find the same conclusory reliance on undisclosed literature that we determined did notconstitute credible evidence in Bitchatchi. We see no reason to no t find similarly in this case.Accordingly, the order and judgment (one paper) of the Supreme Court, New York County (JaneS. Solomon, J.), entered May 10, 2010, which granted this article 78 petition seeking, inter alia,to annul respondents' decision to disapprove the designation of the death of petitioner's husbandas a line-of-duty World Trade Center death, and to compel such designation, should be affirmed,without costs.Gonzalez ..., P.J., Tom .,. and Renwick ...., JJ ., concur.Order and judgment (one paper), Supreme Court, New York County, entered May 10, 2010,affirmed, without costs.

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Nilda Macri Respondent v Raymond Kelly