Bodnar v. Levitt

• Decision Date: 16 January 1974
• Citation: 77 Misc.2d 46,351 N.Y.S.2d 360
• Parties: Application of Francis P. BODNAR, Petitioner, v. For an Order against Arthur LEVITT, Individually and as Comptroller of the State of New York and as Administrative Head of the New York State Employees' Retirement System, Respondent.
• Court: New York Supreme Court

Page 360

351 N.Y.S.2d 360

77 Misc.2d 46

Application of Francis P. BODNAR, Petitioner, v. For an Order against Arthur LEVITT, Individually and as Comptroller of the State of New York and as Administrative Head of the New York State Employees' Retirement System, Respondent.

Supreme Court, Albany County.

Jan. 16, 1974.

Fanelli, Moore, Bosco, Penzel & McMillan, New Rochelle, for petitioner.

Louis J. Lefkowitz, Atty. Gen., N.Y., for respondent; John Q. Driscoll, Albany, of counsel.

MEMORANDUM

JOHN T. CASEY, Justice.

The petitioner became a member of the New York State Retirement System on December 3, 1959, employed as a Senior Valuation Engineer at an annual salary of $7800.He resigned this position on June 28, 1961 for private employment.He returned to New York State service on June 17, 1963 at an annual salary of $12,000 and rejoined the Retirement System, but this time as an employee of the Power Authority, a participating employer in that system.He is still so employed.

Section 41, subdiv. k of the Retirement and Social Security Law, added by the Laws of 1970 and effective May 5, 1970, governs the retirement credit for World War II Military Service that may be purchased by 'a Member in the employ of the state as of March thirty-first, nineteen hundred seventy'.This section, of course, applies only to 'direct' state employees and not to those of a participating employer.In Subdiv. 2 of that Section it is provided that to obtain this credit for military service 'a member shall: deposit . . . a sum equal to the product of his normal rate of contribution At the time of entry into state service, his Annual rate of compensation at that time, and the period of Military service being claimed, with regular interest, and (b) deposit in the pension accumulation fund a sum equal to the product of the state's normal contribution rate at the time of the member's Entry into such service, his annual rate of compensation at that time, and the period of military service being claimed, with regular interest'.

At the same Legislative session and effective the same day, May 5, 1970, Section 33 of the Retirement and Social Security Law was added, and that section provided that 'by adoption, filing and approval . . . of a resolution . . . a participating employer may elect to provide for its own employees any of the benefits provided for persons in the employ of the state listed as follows: . . . (in)subdivision k of section forty-one'.

The Power Authority as a participating employer adopted such a resolution on April 19, 1971, filed it on April 21, 1971, and within the time limit provided, filed a request on behalf of the petitioner to purchase for him the three years of military service credit allowed.

The dispute herein exists because the Retirement System notified the petitioner that his military service credit would be computed on the basis of his salary at the time he became employed...