State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519417 

________________________________

In the Matter of LAURA FLERX

et al.,

Petitioners,

v

MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as 

Comptroller of the State of 

New York, et al.,

Respondents.

________________________________

Calendar Date: February 17, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Ruskin Moscou Faltischek, PC, Uniondale (E. Christopher

Murray of counsel), for petitioners.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs of counsel), for respondents.

__________

McCarthy, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review four determinations of respondent Comptroller which denied

petitioners' applications to enroll in the New York State and

Local Employees' Retirement System.

Petitioners are employees of the Stony Brook University

Medical Center (hereinafter SBUMC). Petitioners Laura Flerx,

Elefteria Hertzson and Scot Weber allege that, shortly after they

commenced their employment, they were informed by SBUMC

representatives that they could not enroll in the New York State
-2- 519417 

and Local Employees' Retirement System (hereinafter NYSLERS) and

that they had to enroll in the Optional Retirement Program

(hereinafter ORP). Petitioner Steven Schindler alleged that he

never completed a retirement plan enrollment form, but was

nonetheless enrolled in ORP. Upon learning, years later, that

they had been eligible for enrollment in NYSLERS, petitioners

applied for enrollment but were denied. Following a hearing,

petitioners' applications were denied by a Hearing Officer. 

Respondent Comptroller subsequently adopted the Hearing Officer's

determinations. Petitioners commenced this proceeding seeking to

annul the determinations and obtain enrollment in NYSLERS.

The Comptroller's determinations should be upheld because

they are supported by substantial evidence. Courts will not

disturb the Comptroller's application and interpretation of

relevant statutes unless it is irrational or contrary to the

plain language of the statutes (see Matter of Price v New York

State & Local Employees' Retirement Sys., 107 AD3d 1212, 1214

[2013]). Education Law § 393 (1) (a) provides that eligible

employees "shall elect" to join either NYSLERS or ORP. If an

employee fails to make an election, he or she "shall be deemed to

have elected membership in [NYSLERS]" (Education Law § 393 [1]

[b]). Upon enrollment in ORP, an employee becomes "ineligible

for membership" in NYSLERS (Education Law § 393 [2]). 

Flerx and Weber each testified that they met with a human

resources representative of SBUMC who informed them that they

could not enroll in NYSLERS, so they filled out forms electing

ORP. Hertzson said that she received the same information, but

did not check the box for ORP on the retirement program election

form. Although she alleges that someone else must have checked

the box, Hertzson acknowledged that she completed and signed a

separate application to enroll in ORP. Schindler testified that

he never enrolled in a retirement program and the enrollment form

produced by SBUMC was forged. Despite this alleged forgery and

not having enrolled in a retirement program, Schindler was aware

that he had a pension plan, which was ORP, and did not object or

raise any questions about it for 25 years after his employment

began. 
-3- 519417 

The Comptroller determined, through a reasonable

application of these facts and the relevant statutes, that

petitioners were ineligible for enrollment in NYSLERS because

they were enrolled in ORP (see Education Law § 393 [2]). 

Petitioners contend that they did not "elect" to join ORP as

opposed to NYSLERS – inasmuch as an election implies a voluntary

choice, which was impossible here because they were misinformed

and told that they had no options – so they should be deemed

members of NYSLERS pursuant to Education Law § 393 (1) (b). As

Education Law § 393 does not define "elect," and it is reasonable

to interpret that word to include the filing of an enrollment

form for one particular retirement program regardless of the

applicant's knowledge of other options, we will not disturb the

Comptroller's interpretation (see Matter of Price v New York

State & Local Employees' Retirement Sys., 107 AD3d at 1214). 

Finally, the Comptroller is not estopped from denying

enrollment in NYSLERS, as required by statute once petitioners

were enrolled in ORP (see Education Law § 393 [2]), due to

erroneous advice supplied by petitioners' employer (see

Retirement and Social Security Law § 45; Matter of Price v New

York State & Local Employees' Retirement Sys., 107 AD3d at 1215-

1216; Matter of Grella v Hevesi, 38 AD3d 113, 117 [2007]; Matter

of Hession v New York State & Local Employees' Retirement Sys.,

24 AD3d 1008, 1010 [2005]; see also Matter of Dear v New York

State & Local Retirement Sys., 115 AD3d 1141, 1143 [2014], lv

denied 23 NY3d 905 [2014]; Matter of Limongelli v New York State

Employees' Retirement Sys., 173 AD2d 904, 906 [1991]). 

Egan Jr., Devine and Clark, JJ., concur.
-4- 519417 

ADJUDGED that the determinations are confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court