Because I believe that the Police Pension Fund Board of Trustees revoked petitioner’s disability retirement benefits on April 11, 2007, and that the July 12, 2007 Law Department memorandum challenged by petitioner merely interpreted that revocation, I respectfully dissent.
The Board of Trustees voted on April 11, 2007 not only to return Seiferheld to city service, but also to deny him—“disapproval” him for—accident disability retirement, “bringing the *569member back off disability.” As the Deputy Executive Director of the Police Pension Fund informed the Department of Citywide Administrative Services (DCAS), in a letter of May 2, 2007, the Board of Trustees had rescinded its earlier decision approving Seiferheld’s accident disability retirement application, and “denied bim a continuation of disability benefits.” In my view, the Board of Trustees did, despite Seiferheld’s allegations to the contrary, make the final determination regarding the revocation of his accident disability retirement benefits.
With his disability pension revoked, petitioner became subject to the “safeguards” statute, New York City Administrative Code § 13-254, and he would have been placed on a special preferred list for a position as a police officer, except that cocaine was found in his hair sample, disqualifying him. At this point, unsurprisingly, DCAS failed to recommend him for any other civil service title position.
When the Chief of the New York City Law Department’s Pensions Division informed the Police Pension Fund’s Deputy Executive Director that Seiferheld’s accident disability retirement should be “suspended,” i.e. terminated, in its entirety, because he was no longer considered disabled, she was not terminating Seiferheld’s accident disability retirement benefits because of his drug test failure. She was merely interpreting the effects that the drug test failure might have on the April 11, 2007 Board of Trustees determination denying Seiferheld accident disability retirement. Her conclusion was that the drug test failure would have no effect on Seiferheld’s status with respect to accident disability; those benefits had been revoked by the Board of Trustees, and the revocation would stand, “notwithstanding” the fact that Seiferheld now would have no job. The drug test failure would not affect the prior revocation of benefits determination.
In other words, no new, allegedly unauthorized, determination was made by the Law Department. Rather, it was interpreting the preexisting, April 11, 2007 Board of Trustees decision to revoke Seiferheld’s accident disability retirement benefits. Seiferheld’s disability benefits were not revoked by the Law Department; they had already been revoked by the Board of Trustees.
Seiferheld’s real problem—and one for which there may be no legal recourse—is that DCAS decided not to recommend that he be placed on any other special preferred list (i.e. for other civil service title positions) after he failed the drug test. This meant *570that he had not been “offered city-service as a result of the placing of his or her name on a civil service list” (Administrative Code of City of NY § 13-254 [a]), and would not qualify for a “safeguards” pension in place of his revoked disability pension. But challenging DCAS’s decision is an argument that Seiferheld has chosen not to make. Seiferheld does not argue that DCAS acted in excess of its authority in its decision not to recommend him for a position.
In my view, the Appellate Division erred in finding that the Board of Trustees had not considered what action should be taken with respect to revocation of the accident disability retirement benefits. This error, which the majority of this Court repeats, rests on an assumption that the Board’s final determination had merely been that Seiferheld should be returned to work as a police officer. This leaves out a crucial part of the Board’s ruling. The Board’s final determination was that Seiferheld was not disabled, should not receive disability benefits, and should be returned to work.
I would therefore reverse, deny the petition and dismiss the CPLR article 78 proceeding.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones concur with Judge Smith; Judge Pigott dissents and votes to reverse in a separate opinion.
Order affirmed, etc.