| N.Y. App. Div. | Dec 24, 1996
—Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered September 21, 1995, which, inter alia, granted petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination denying petitioner an accident disability pension and remanded the matter to respondents, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed.
Initially, we affirmed, finding that the IAS Court correctly held respondents’ determination to be arbitrary and capricious on the basis of overwhelming medical evidence of disability and the lack of any credible evidence to support a finding of no disability, relying upon our earlier decision in Matter of Borenstein v New York City Employees’ Retirement Sys. (218 AD2d 523). The decision in Borenstein (supra), has just been reversed (88 NY2d 756), the Court of Appeals finding our view of the record erroneous and that we improperly substituted our own judgement for that of the Medical Board. In light of the Court of Appeals’ decision in Borenstein, the order and judgment in this matter should be reversed.
Upon reargument, the unpublished decision and order of this Court entered on May 9, 1996 (Appeal No. 57872) is recalled and vacated, and a new decision and order of this Court substituted therefor. The motion seeking leave to appeal to the Court of Appeals is denied as moot. Concur—Milonas, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.