Devereaux v. New York State Teachers' Retirement Bd.
| Decision Date | 26 June 1980 |
| Citation | 75 A.D.2d 277,429 N.Y.S.2d 743 |
| Parties | In the Matter of Eugene J. DEVEREAUX, Appellant, v. NEW YORK STATE TEACHERS' RETIREMENT BOARD et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Bernard F. Ashe, Albany (Ira Paul Rubtchinsky, Albany, of counsel), for appellant.
Robert Abrams, Atty. Gen., Albany , for respondents.
Before KANE, J. P., and STALEY, MIKOLL, CASEY and HERLIHY, JJ.
Petitioner was employed as a full-time teacher in the State of New Jersey from September, 1938 until June, 1942 when he became a member of the armed forces of the United States. Upon being honorably discharged in January, 1946, he resumed teaching in New Jersey, and continued to teach there until the month of June, 1946. He was a member of the Teachers' Pension and Annuity Fund of New Jersey from September, 1938 until June, 1946, which granted him credit for the time he served in military service.
In 1954, petitioner commenced teaching in New York State and became a member of the New York State Teachers' Retirement System. Petitioner continued to teach in New York State until his retirement on July 1, 1978. The New York State Retirement System has credited him with 24 years of teaching service in New York State, and with four years and five months' teaching service in New Jersey, which he was allowed to purchase pursuant to section 509 of the Education Law.
On April 23, 1978, petitioner requested credit for his military service during World War II. By letter dated April 27, 1978, the Executive Director of the New York State Teachers' Retirement System denied the request, stating that his claim for military service during World War II was not creditable under section 243 of the Military Law or sections 503 and 509 of the Education Law.
On August 22, 1978, this proceeding was commenced to compel the New York State Teachers' Retirement System to provide him with credit for his military service while he was a resident of the State of New Jersey. The petition alleges three causes of action.
The first cause of action alleges that he is entitled to credit for his military service pursuant to section 509 of the Education Law as it existed when he became a member of the New York State Teachers' Retirement System in 1954. The second cause of action alleges that the residency requirements of article 11 of the Education Law violate the Constitution of the United States. The third cause of action alleges that the refusal of the respondents to grant him credit for military service is a violation of his rights under section 2021 of title 38 of the United States Code, which provides the right to reemployment to persons inducted into the armed forces of the United States.
Special Term determined that petitioner is not entitled to credit for military service rendered while he was a resident of the State of New Jersey; that the provisions of the Educational Law dealing with military service credit are not unconstitutional; and that the provisions of section 2021 of title 38 of the United States Code do not impose an obligation upon the New York State Teachers' Retirement System to grant him credit for his prior military service.
Petitioner contends that he is entitled to credit for his prior military service under subdivision 2 (par. (a) ) of section 509 of the Education Law as it existed at the time he became a member of the respondent system, and which provided, in part, as follows:
Each new entrant shall file a detailed statement of (1) service as a teacher; (2) service in a similar capacity in other states rendered by him prior to becoming a member * * * .
It is argued that "service in a similar capacity" does not require actual teaching service, and that New Jersey Teachers' Pension and Annuity Fund having concluded that petitioner was a teacher for retirement purposes during the period of his military service, he is entitled to credit with the respondent system for his military service under section 509 of the Education Law.
The words "service in a similar capacity in other states" must be construed in conjunction with the meaning of the words "service as a teacher". The word "teacher" is defined in subdivision 4 of section 501 of the Education Law. The definition is quite lengthy, but, for the purposes herein, it defines a teacher as a regular or special teacher and other enumerated educational positions in the public school system and other schools, conducted under the order and superintendence of and wholly, or partly, at the expense of the New York State Education Department or of a school district. Service in a similar capacity in another state must then be construed as service as a teacher, or in similar positions as enumerated in subdivision 4 of section 501 of the Education Law in the public school system of another state. There being no mention of military service in subdivision 4 of section 501 of the Education Law, respondents did not act in an arbitrary or capricious manner in defining the...
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