Dear v. N.Y. State & Local Ret. Sys.

• Decision Date: 27 March 2014
• Parties: In the Matter of Noach DEAR, Petitioner, v. NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, Respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1141

982 N.Y.S.2d 604

2014 N.Y. Slip Op. 02124

In the Matter of Noach DEAR, Petitioner,

v.NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 27, 2014.

Heller, Horowitz & Feit, PC, New York City (Eli Feit of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and EGAN Jr., JJ.

PETERS, P.J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Comptroller which denied petitioner's application for a refund of certain retirement contributions.

In 1977, petitioner became a member of the New York City Employees' Retirement System (hereinafter NYCERS) in connection with his employment with the City of New York, and his NYCERS membership remained active thereafter. In 2007, after petitioner was elected to a judgeship, he became qualified for membership in respondent, a separate retirement system servicing eligible state employees. Consequently, petitioner enrolled in respondent as a tier 4 member, effective January 1, 2008, after which, due to his non-vested status in that system, 3% of his salary was deducted from each of his paychecks pursuant to Retirement and Social Security Law § 21(d) and (f) and § 613. Thereafter, on May 27, 2010, petitioner filed an application with NYCERS requesting that his active membership in that retirement system be transferred to respondent. Once that transfer was effectuated, petitioner was credited with over 10 years of service and the May 2010 date was deemed to be petitioner's “[c]essation date” as defined by Retirement and Social Security Law § 900(f). Consequently, petitioner's membership with respondent was duly backdated to the date he originally joined NYCERS in 1977. This resulted in petitioner's status with respondent being changed to that of a tier 3 member and, because he was now credited with more than 10 years of eligible service, the 3% contribution from his salary was discontinued as of May 2010.

Subsequently, petitioner contacted respondent and requested a refund of the 3% contributions deducted from his salary after he became a member in January 2008. Respondent informed petitioner that it could not refund the contributions deducted from his salary prior to May 2010 because, pursuant to Retirement and Social Security Law § 902(b)(2), it is barred from refunding contributions made prior to a member's cessation date. Petitioner timely requested a hearing challenging that denial, after which the Hearing Officer concluded that petitioner failed to meet his burden of establishing that he was entitled to a refund of contributions deducted from his salary for the period between January 2008 and May 2010. The Comptroller made one supplemental finding of fact, but otherwise adopted the Hearing Officer's determination. ¹ This CPLR article 78 proceeding followed.

Petitioner does not assert that respondent misinterpreted the applicable statutory provisions. He maintains, however, that respondent and the Comptroller should be equitably estopped from asserting that his cessation date is in May 2010, rather than on January 1, 2008, the date his application with respondent was deemed effective. According to petitioner, the Comptroller breached his fiduciary duty by providing misinformation regarding the requirements to transfer his membership in NYCERS to respondent, thus causing him to obtain a later cessation...