Moynihan v. New York State Employee's Retirement System

• Decision Date: 22 April 1993
• Citation: 596 N.Y.S.2d 570,192 A.D.2d 913
• Parties: In the Matter of Arthur W. MOYNIHAN, Appellant, v. NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 570

596 N.Y.S.2d 570

192 A.D.2d 913

In the Matter of Arthur W. MOYNIHAN, Appellant, v. NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM et al., Respondents.

Supreme Court, Appellate Division Third Department.

April 22, 1993.

Arthur W. Moynihan, in pro. per.

Robert Abrams, Atty. Gen. (Peter G. Crary, of counsel), Albany, for respondents.

Before WEISS, P.J., and YESAWICH, MAHONEY, CASEY and HARVEY, JJ.

WEISS, Presiding Justice.

Appeal from a judgment of the Supreme Court (Harris, J.), entered July 27, 1992 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Comptroller denying petitioner's request for reinstatement to tier II status in respondent New York State Employees' Retirement System.

The undisputed facts are that petitioner had been employed by the State from October 2, 1975 and was enrolled in respondent New York State Employees' Retirement System as a tier II member. He was on paid sick leave from August 11, 1978 until November 30, 1978 due to an injury and on December 1, 1978 was placed on sick leave without pay until he was terminated on June 3, 1981. Petitioner's membership in the Retirement System was terminated on December 1, 1983 because five years had elapsed since he had performed paid government service (see, Retirement and Social Security Law § 40[f][1].

Petitioner reentered State employment on November 26, 1984 and was reenrolled in the Retirement System as a tier IV member. Subsequently, Retirement and Social Security Law § 40(f)(1) was amended (L.1986, ch. 774) to provide that membership in the Retirement System terminates seven years after a member last performed government service. Petitioner's December 10, 1990 application for reinstatement to tier II status was denied. Following a hearing, respondent Comptroller denied petitioner's application for redetermination holding that the 1986 amendment was solely prospective. Supreme Court found that the absence of any intent in the express wording of the amendment to provide retroactivity required dismissal of petitioner's CPLR article 78 proceeding to annul the determination.

The sole issue on this appeal is whether the 1986 amendment should be given retroactive effect. We agree with both the Comptroller and Supreme Court that the statute should only be applied prospectively. We find lacking any indication of intent to provide retroactivity. Quite to the contrary, the amendment recites that it shall take effect immediately, which language this court has held provides a clear indication that prospective application is appropriate (see, Matter of Lusardi v. Eugene Lusardi, M.D., P.C., 167 A.D.2d 3, 4, 570 N.Y.S.2d 376; see also, County of Rensselaer v. City of Troy, 120 A.D.2d 796, 797, 501 N.Y.S.2d 534), which holding conforms to the general rule (see, Murphy v. Board of Educ. of N. Bellmore Union Free School Dist., 104 A.D.2d 796, 480 N.Y.S.2d 138, affd. 64 N.Y.2d 856, 487 N.Y.S.2d 325, 476 N.E.2d 651; see also, Matter of Thomas v. Bethlehem Steel Corp., 63 N.Y.2d 150, 154, 481 N.Y.S.2d 33, 470 N.E.2d 831; McKinney's Cons.Laws of N.Y., Book 1, Statutes § 52).

Petitioner relies heavily upon Matter of Cady v. County of Broome, 87 A.D.2d 964, 451 N.Y.S.2d 206, lv. denied 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798, in which this court explained that a remedial statute is one designed to correct...