Flynn v. New York City Police Dept. Retirement System

• Decision Date: 09 June 1977
• Citation: 95 Misc.2d 876,408 N.Y.S.2d 582
• Court: New York Supreme Court
• Parties: In the Matter of the Proceeding of William FLYNN, and Edward M. Flynn, Petitioners, for an Order and Judgment pursuant to Article 78 of the C. P. L. R. v. The NEW YORK CITY POLICE DEPARTMENT RETIREMENT SYSTEM, Michael Codd, as Chairman of the Board of the New York City Police Department Retirement System, Sanford Garelik, Chief of the New York City Transit Police Department, Anthony V. Bouza, Deputy Chief of the New York City Transit Police Department, Sidney Cooper, Consultant to the New York City Transit Police Department, John G. deRoos, Senior Executive Officer, New York City Transit Authority, the New York City Transit Authority, the New York City Civil Service Commission, Thomas Roche, Commissioner, New York City Civil Service Commission, Abraham Beame, Mayor of the City of New York, Harrison J. Goldin, Controller of the City of New York, Respondents.

Page 582

408 N.Y.S.2d 582

95 Misc.2d 876

In the Matter of the Proceeding of William FLYNN, and Edward M. Flynn, Petitioners, for an Order and Judgment pursuant to Article 78 of the C. P. L. R. v. The NEW YORK CITY POLICE DEPARTMENT RETIREMENT SYSTEM Michael Codd, as Chairman of the Board of the New York City Police Department Retirement System, Sanford Garelik, Chief of the New York City Transit Police Department, Anthony V Bouza, Deputy Chief of the New York City Transit Police Department, Sidney Cooper, Consultant to the New York City Transit Police Department, John G. deRoos, Senior Executive Officer, New York City Transit Authority, the New York City Transit Authority, the New York City Civil Service Commission, Thomas Roche, Commissioner, New York City Civil Service Commission, Abraham Beame, Mayor of the City of New York, Harrison J. Goldin, Controller of the City of New York, Respondents.

Supreme Court, Special Term, New York County, Part I.

June 9, 1977.

William Flynn, pro se.

W. Bernard Richland, Corp. Counsel by Irving Genn, New York City, for New York City Police Department Pension Fund, Michael J. Codd, New York City Civil Service Commission, Thomas Roche, Abraham Beame.

Harrison J. Goldin, New York City, Alphonse E. D'Ambrose, Brooklyn, for New York City Transit Authority, Sanford Garelik, Anthony V. Bouza and John G. deRoos.

David A. Goldstein, New York City, for Sidney Cooper.

EDWARD J. GREENFIELD, Judge.

In this Article 78 proceeding, petitioners basically seek to compel respondent Transit Authority to cease employing respondents Garelik, Bouza and Cooper until Retirement and Social Security Law § 211 are complied with and to have alleged illegal payments of retirement allowances to these respondents terminated. Respondents cross-move to dismiss the petition on the ground that it fails to state a cause of action and on the ground that petitioners lack standing.

Under the Retirement and Social Security Law, retirees may re-enter public service while drawing a pension under specified conditions. Respondents Garelik and Bouza retired from the New York City Police Department and were subsequently employed by the Transit Authority. Respondent Cooper retired from the Police Department for ordinary disability in 1972 and was retained by the Transit Authority as a consultant. These three respondents are all receiving retirement allowances from the Police Department Pension Fund, as well as compensation from the Transit Authority.

Although petitioners may feel that re-employment of retired persons without a diminution of their pension benefits is ill-advised, the instant proceeding must fail as a matter of law.

Petitioner William Flynn, is a sergeant in the Transit Authority and a member of the New York City Employees' Retirement System. Petitioner Edward M. Flynn is retired from the Department of Sanitation and is also a member of the New York City Employees' Retirement System.

Neither petitioner is a member of the Police Department Pension Fund, a separate retirement system. Petitioners' contention that the payment of the pensions in issue will jeopardize the ability of the City to carry out its obligations with respect to the payment of petitioners' pensions is not a sufficient...