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THE NEW YORK STATE AND LOCAL RETIRMENT SYSTEM DID NOT REBUT THE “WORLD TRADE CENTER PRESUMPTION” THAT PETITIONER’S DEPRESSION WAS AGGRAVATED BY HIS EXPERIENCES ON 9-11; PETITIONER POLICE OFFICER WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, reversing the Comptroller, determined that the respondent New York State and Local Retirement System did not rebut the “World Trade Center presumption” that petitioner’s depression was aggravated by his experiences on 9-11:

Recognizing that there is no objective laboratory test to diagnose a mental health disorder like depression, if Fayer [respondent’s expert] was going to assert as fact that there are definitive biological reasons for petitioner’s qualifying condition — and that his depression would have reached the point of disability no matter the circumstances — it was incumbent upon Fayer, or the Retirement System generally, to provide some support for that far-reaching conclusion … . “Although the [World Trade Center] presumption is not a per se rule mandating enhanced accidental disability retirement benefits for first responders in all cases” … . in our view, accepting Fayer’s generalized conclusions, on their own, as adequate to rebut the statutory presumption afforded to petitioner — that his depression was in fact aggravated by his experiences on 9/11 — renders the existence of the presumption illusory. We therefore reverse the Comptroller’s finding that the Retirement System rebutted the World Trade Center presumption … . As a result, petitioner’s application for World Trade Center accidental disability retirement benefits must be granted (see Retirement and Social Security Law § 363 [g] [1] [a]). Matter of Fragola v DiNapoli, 2021 NY Slip Op 07596, Third Dept 12-30-21

 

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