## State of N ew York
Su p reme Cou rt, A p p ellate Division Third J u dicial Dep artment

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,-2- 519242

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, 1292-3- 519242

[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]-4- 519242

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.-5- 519242

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger
Clerk of the Court