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

• Decision Date: 25 June 2015
• Docket Number: 519242
• Parties: In the Matter of Anne P. WESTMORLAND, Petitioner, v. NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1402
12 N.Y.S.3d 631
2015 N.Y. Slip Op. 05532

In the Matter of Anne P. WESTMORLAND, Petitioner
v.
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, Respondent.

519242

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

June 25, 2015.

12 N.Y.S.3d 631

Pope Law Firm, PLLC, Williamsville (Paul T. Buerger Jr. of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.

12 N.Y.S.3d 632

Before: PETERS, P.J., GARRY, EGAN JR. and LYNCH, JJ.

Opinion

EGAN JR., J.

129 A.D.3d 1402

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 additional pension service credits.

Between December 1969 and July 1980, petitioner was employed as a typist by the State University of New York at Buffalo. Petitioner retired due to illness on a tier 1 ordinary disability pension effective July 24, 1980, at which point she

129 A.D.3d 1403

had accumulated nearly 11 years of service credit. Petitioner's health subsequently improved, and she returned to the university in 1985 as a keyboard specialist. Following her return, petitioner continued to receive her disability pension benefit-in addition to her salary and within the parameters set forth in Retirement and Social Security Law § 102.

Ten years later, by letter dated March 29, 1995, petitioner asked respondent to provide her with her service credit to date. Respondent informed petitioner that she had accumulated 10 years, 7 months and 15 days of service credit between 1969 and 1980 and, in conjunction therewith, expressly advised petitioner that she was not “receiv[ing] service credit for time worked after retirement while [she was] also receiving pension benefits.” Eleven years later, by letter dated May 12, 2006, petitioner again wrote to respondent, this time inquiring as to whether she had in fact applied to be “restored to membership” in respondent and, further, whether it was possible to retroactively obtain service credit for her postretirement work. After being advised that she could not simultaneously collect her disability pension benefit and be an active member of respondent earning service credit, petitioner commenced an action seeking to restore the service credit to which she believed she was entitled. Respondent's subsequent motion to dismiss for failure to exhaust administrative remedies was granted.

The matter eventually proceeded to an administrative hearing, at the conclusion of which the Hearing Officer found, among other things, that petitioner was not entitled to additional service credit. The Comptroller adopted the Hearing Officer's findings in this regard, prompting petitioner to commence this CPLR article 78 proceeding to challenge the Comptroller's determination.

We confirm. “The Comptroller ‘is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence’ ” (Matter of Cohen v. New York State & Local Employees' Retirement Sys., 117 A.D.3d 1370, 1370, 986 N.Y.S.2d 703 [2014], lv. dismissed and denied 24 N.Y.3d 1028, 997...