Hohensee v. Regan
| Decision Date | 10 March 1988 |
| Citation | 138 A.D.2d 812,525 N.Y.S.2d 733 |
| Parties | In the Matter of Arthur A. HOHENSEE, Petitioner, v. Edward V. REGAN, as State Comptroller and Administrator of the New York State Policemen's and Firemen's Retirement System, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Hamsher & Valentine (Richard P. Valentine, of counsel), Buffalo, for petitioner.
Robert Abrams, Atty. Gen. (Alan W. Rubenstein, of counsel), Albany, for respondent.
Before KANE, J.P., and YESAWICH, LEVINE and HARVEY, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent which excluded certain payments in calculating petitioner's final average salary upon retirement.
On January 22, 1985, after 20 years of municipal police service, petitioner retired and thereupon became eligible to receive a pension based on his "final average salary" earned in the 12 months immediately preceding his retirement (see, Retirement and Social Security Law § 302 [9][d] ). In computing his final average salary, the State Policemen's and Firemen's Retirement System did not include a lump-sum payment of $2,558.43 received by petitioner on March 2, 1984 as a credit for vacation he did not take in 1984, a similar payment of $2,558.43 received January 4, 1985 for vacation he would not be taking in 1985 because of his retirement, and also $775 paid as a clothing allowance on January 18, 1985. Following a formal hearing, had pursuant to the Retirement and Social Security Law, at which petitioner unsuccessfully challenged respondent's exclusion of these payments in calculating his final average salary, petitioner initiated this CPLR article 78 proceeding seeking a judgment directing respondent to include these three payments in his final average salary and to redetermine and recalculate his monthly retirement allowance accordingly.
Although this matter was improperly transferred to this court, for it involves a statutory interpretation rather than any factual analysis, we retain it pursuant to CPLR 7804(g) ( see, Matter of Consumer Protection Bd. v. Public Serv. Commn., 85 A.D.2d 321, 323, 449 N.Y.S.2d 65, appeal dismissed 57 N.Y.2d 673, 454 N.Y.S.2d 1034, 439 N.E.2d 1248).
Retirement and Social Security Law § 302(9)(d) states, in relevant part:
* * * "Final Average Salary" shall mean the regular compensation earned from such participating employer by a member during the twelve months of actual service immediately preceding the date of such employee's retirement, exclusive of any lump sum payments for sick leave, or accumulated vacation credit, or any form of termination pay * * *.
Respondent is responsible for the construction of this statute and, absent a showing that his interpretation is irrational or unreasonable, it is to be upheld ( see, Matter of Spitz v. Regan, 98 A.D.2d 920, 470 N.Y.S.2d 915). Construing "regular compensation earned * * * during * * * actual service" to mean fixed regular wages, as respondent has, is consistent with both the plain meaning of "salary" (see, Matter of Bateman v. Mayor, 247 N.Y. 250, 259, 160 N.E. 361) and a legislative intention to guard against Retirement System members manipulating their pay to inflate their final average salaries (see, Retirement and Social Security Law § 431).
That lump-sum vacation payments are not regular compensation is clear from the fact that had petitioner taken his vacation he would have received his regular wages during that period. Having elected to forego his vacation and to work instead the $2,558.43 payment, the cash equivalent he received in lieu of his 1984 vacation, was in addition to his regular compensation and thus extraordinary ( see, Matter of Cannavo v. Regan, 122 A.D.2d 523, 524, 505 N.Y.S.2d 268, lv. denied 68 N.Y.2d 612, 510 N.Y.S.2d 1026, 503...
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