General
In the Matter of Luke P. McGovern, Respondent, v. Robert O. Lowery, as Fire Commissioner of the City of New York, and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, et al., Appellants
39 A.D.2d 518·New York Supreme Court, Appellate Division·1972·NY
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Opinion
In the Matter of Luke P. McGovern, Respondent, v. Robert O. Lowery, as Fire Commissioner of the City of New York, and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, et al., Appellants.
[MAJORITY]
Judgment, Supreme Court, New York County, entered on November 20, 1970, unanimously reversed, on the law, without costs and without disbursements, and the petition dismissed. Where, as here, there is a difference of opinion between doctors as to the cause of petitioner’s disability, respondents’ determination, based upon the advice and recommendation of its Medical Board, cannot be said to be arbitrary and capricious. (Mat ter of Eichler v. MeElligott, 259 App. Div. 151, affd. 283 N. Y. 716; Matter of Tiernan v. Walsh, 268 App. Div. 962, affd. 294 N. Y. 299; Matter of Gratz v. Cavanagh, 18 A D 2d 887.) Concur—Stevens, P. J., McGivem, Nunez, Murphy and Capozzoli, JJ.