State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 25, 2015 519242 

________________________________

In the Matter of ANNE P.

WESTMORLAND,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE AND LOCAL

RETIREMENT SYSTEM,

Respondent.

________________________________

Calendar Date: April 24, 2015

Before: Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

__________

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.

__________

Egan Jr., J.

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

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,
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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 AD3d 1370, 1370

[2014], lv dismissed and denied 24 NY3d 1028 [2014], quoting

Matter of Williams v McCall, 283 AD2d 808, 809 [2001]; see Matter

of Ratzker v Office of the N.Y. State Comptroller [N.Y. State &

Local Retirement Sys.], 106 AD3d 1321, 1322 [2013], lv denied 22

NY3d 854 [2013]; Matter of Muccia v DiNapoli, 69 AD3d 1291, 1292
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[2010]; Matter of DeLuca v New York State & Local Employees'

Retirement Sys., 48 AD3d 876, 877 [2008]). As the party seeking

additional service credit, petitioner bore the burden of

demonstrating her entitlement thereto (see Matter of Cohen v New

York State & Local Employees' Retirement Sys., 117 AD3d at 1370;

Matter of Ratzker v Office of the N.Y. State Comptroller [N.Y.

State & Local Retirement Sys.], 106 AD3d at 1322-1323; Matter of

DeLuca v New York State & Local Employees' Retirement Sys., 48

AD3d at 877).

Retirement and Social Security Law § 102 governs

postretirement employment by disability pensioners and dictates,

based upon the disability retiree's final salary (see Retirement

and Social Security Law § 102 [f]) following his or her return to

active service, whether membership in respondent is mandatory

(see Retirement and Social Security Law § 102 [d]) or optional

(see Retirement and Social Security Law § 102 [e]). Here, the

evidence adduced at the hearing revealed that petitioner's salary

upon returning to active service was such that membership in

respondent was not mandatory and that, despite exploring the

possibility of enrolling in respondent, petitioner never actually

exercised her option to do so. Absent membership in respondent

following her return to service in 1985, and in light of her

continued receipt of disability pension benefits, petitioner

simply was not entitled to earn additional service credit.

Petitioner's related arguments on this point do not warrant

extended discussion. Despite petitioner's protestations to the

contrary, the Comptroller was not under an affirmative duty to

either apprise petitioner of all available options relating to

her retirement benefits or ensure that she selected the most

advantageous benefit (see Matter of O'Neill v Regan, 114 AD2d

613, 614 [1985]; cf. Matter of Gorey v New York State

Comptroller, 83 AD3d 1363, 1364 [2011]; Matter of Hutt v

Retirement Bd. of N.Y. State Teachers' Retirement Sys., 299 AD2d

679, 680 [2002]).1 Further, to the extent that petitioner

1 It bears repeating that petitioner was advised – in early

1995 and in no uncertain terms – that she was not "receiv[ing]

service credit for time worked after retirement while [she was]
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contends that one of respondent's employees provided her with

incomplete or erroneous advice regarding her membership/benefit

options upon returning to service, it is well settled that,

except in narrow circumstances not present here (see Matter of

Atlantic States Legal Found., Inc. v New York State Dept. of

Envtl. Conservation, 119 AD3d 1172, 1173 [2014]), "estoppel is

not available against a governmental agency in the exercise of

its governmental functions and respondent may not be estopped by

the erroneous acts of its administrative employees" (Matter of

Dear v New York State & Local Retirement Sys., 115 AD3d 1141,

1143 [2014], lv denied 23 NY3d 905 [2014] [internal quotation

marks, brackets and citations omitted]). More to the point,

estoppel cannot be invoked "to create rights to retirement

benefits to which there is no entitlement" (Matter of Bombace v

Nitido, 117 AD3d 1375, 1376 [2014] [internal quotation marks and

citations omitted]; see Matter of Price v New York State & Local

Employees' Retirement Sys., 107 AD3d 1212, 1216 [2013]). For all

of these reasons, we find the Comptroller's determination denying

petitioner additional service credit to be supported by

substantial evidence.

Peters, P.J., Garry and Lynch, JJ., concur.

also receiving pension benefits." It was not until May 2006 –

roughly 11 years later – that petitioner sought input from

respondent regarding her "options" in this regard. 
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court