State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 7, 2016 521161 

________________________________

In the Matter of VICTOR H.

BATORKSY,

Appellant,

v

NEW YORK STATE OFFICE OF THE

COMPTROLLER et al., MEMORANDUM AND ORDER

Respondents.

ANGELA M. BATORKSY,

Respondent.

________________________________

Calendar Date: February 18, 2016

Before: Peters, P.J., Garry, Rose and Devine, JJ.

__________

Victor H. Batorsky, Rensselaer, appellant pro se.

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

Storrs of counsel), for New York State Office of the Comptrollers

and others, respondents.

Young, Fenton, Kelsey & Brown, PC, Albany (Andrea L. Kelsey

of counsel), for Angela M. Batorsky, respondent.

__________

Garry, J.

Appeal from an order and judgment of the Supreme Court 

(O'Connor, J.), entered July 30, 2014 in Albany County, which

dismissed petitioner's application, in a combined proceeding

pursuant to CPLR article 78 and action for declaratory judgment,

to review a determination of the Deputy Comptroller denying 
-2- 521161 

petitioner's request to change his retirement election option.

Petitioner, a retired state employee and member of

respondent New York State and Local Retirement System, was

formerly married to interested party Angela M. Batorsky, who is

also a retired state employee and Retirement System member. 

Their 2002 judgment of divorce and incorporated stipulations of

settlement required petitioner to pay a share of his pension

benefits to Batorsky calculated according to the formula set

forth in Majauskas v Majauskas (61 NY2d 481 [1984]). In 2005,

Supreme Court (Ceresia Jr., J.) signed a domestic relations order

(hereinafter the 2005 order) that, as relevant here, directed

petitioner to select Batorsky as alternate payee upon his

retirement and to elect a specified retirement option by which,

following his death, she would receive a benefit calculated

according to the Majauskas formula.1 The Retirement System

subsequently calculated the survivorship benefits in accord with

this plan. 

Petitioner thereafter sought postjudgment relief relative

to the distribution of his pension benefits. While engaged in

these negotiations, petitioner also filed an application to

retire with an effective date of September 25, 2010. In response

to his notification regarding potential revisions, in August

2010, the Retirement System advised that it would implement the

2005 order unless it was served with an order terminating or

amending it before September 25, 2010. Thereafter, the

Retirement System advised petitioner of the requirements of the

2005 order and directed him to complete and sign a retirement

option election form. In the fall of 2010, following additional

communications with the parties and their counsel, the Retirement

System approved a proposed amended domestic relations order, and

extended the deadline for petitioner to submit his option form to

1 A corresponding order required Batorsky to make certain

retirement elections for petitioner's benefit; that order is not

at issue in this appeal.
-3- 521161 

October 31, 2010.2 Late in October 2010, the Retirement System

advised petitioner that the deadline could not be further

extended, and that the Retirement System was legally bound to

implement the 2005 order until it was served with an order that

superseded or vacated it or restrained the Retirement System from

implementing it. No such order was served before October 31,

2010. The Retirement System advised petitioner in November 2010

that it would apply the terms of the 2005 order to his

retirement. In December 2010, petitioner requested a hearing to

dispute this determination. 

Also in December 2010, upon the consent of petitioner and

Batorsky, Supreme Court issued an amended domestic relations

order (hereinafter the 2010 order) that vacated and superseded

the 2005 order and, among other things, changed the calculation

of Batorsky's survivorship benefit. The Retirement System

refused to implement the 2010 order, stating that a retiree has

30 days after the first day of the month following the effective

date of his or her retirement to change an option election

pursuant to Retirement and Social Security Law §§ 90 and 100,

that the time to alter Batorksy's survivorship benefit had passed

as a matter of law, and that payments would continue to be made

pursuant to the 2005 order until the Retirement System received

an amended order "which satisfies the requirements of law." 

Supreme Court issued a new amended domestic relations order

upon consent in August 2011 (hereinafter the 2011 order). The

2011 order vacated the 2005 and 2010 orders and changed the

amount of the monthly retirement allowance payable to Batorsky

during petitioner's lifetime, but did not alter the amount of her

survivorship benefit from that specified in the 2005 order. The

Retirement System accepted and implemented the 2011 order.3 

2 The Retirement System asserts that petitioner never

submitted a signed option election form. Although we note that

petitioner disagrees, the only copy of the form in the record is

unsigned and contains a note that petitioner refused to sign it.

3 The alteration in the percentage of petitioner's monthly

retirement allowance during his lifetime was acceptable to the
-4- 521161 

Thereafter, hearings were held upon petitioner's prior

request. Petitioner argued that the amount of Batorsky's

survivorship benefit under the 2011 order should be decreased

and, in the alternative, that the Retirement System erred in

refusing to accept the 2010 order. The Hearing Officer found

that petitioner could not change the percentage of the

survivorship benefit from that specified in the 2005 order

because the option election had become irrevocable on October 31,

2010 pursuant to Retirement and Social Security Law § 90 (e). 

Thereafter, the Deputy Comptroller issued a final determination

denying petitioner's application. Petitioner, pro se, thereafter

commenced this combined CPLR article 78 proceeding and

declaratory judgment action seeking, among other things, vacatur

of the 2011 order and implementation of the 2010 order. 

Respondents opposed and, in July 2014, Supreme Court (O'Connor,

J.) dismissed the petition/complaint, finding that the Deputy

Comptroller's determination was not arbitrary or capricious. 

Petitioner appeals.

Petitioner's several challenges to Supreme Court's

determination are fundamentally premised on the theory that the

Retirement System improperly refused to allow him to change

Batorsky's survivorship benefit. Initially, we must note that,

insofar as his claims relate to the 2010 order, they are moot. 

Petitioner stipulated to the issuance and implementation of the

2011 order after engaging in negotiations in which he was

represented by counsel. The amended stipulation and order

provides that it sets forth the full agreement between petitioner

and Batorsky and that petitioner entered into it freely and

voluntarily. The 2011 order issued thereafter upon this

stipulation provides that it "replaces and supersedes" both the

2005 and 2010 orders and that those orders are "hereby vacated." 

Petitioner does not claim that the 2011 order is invalid or

defective. Accordingly, the rights of the parties related to the

Retirement System because it merely represented a redistribution

between Batorsky and petitioner of the same amounts that were

already payable under the 2005 order and did not alter the

underlying actuarial calculation, as would have resulted if the

survivorship benefit had been changed.
-5- 521161 

2010 order cannot be affected by the determination of this

appeal, and petitioner's claims premised upon that order are moot

(see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see

also Matter of Feustel v Rosenblum, 6 NY3d 885, 886 [2006]; Reyes

v Sequeira, 64 AD3d 500, 505-506 [2009]).

As to the 2011 order, petitioner asserts that it should be

amended to alter the survivorship benefit, and that the

Retirement System improperly refused to permit him to do so. 

These claims are unavailing, as petitioner is not entitled to the

relief he seeks. The Comptroller has exclusive authority to

determine the validity of applications by Retirement System

members for any form of retirement benefits (see Retirement and

Social Security Law § 74 [b]; 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

Siepierski v New York State & Local Retirement Sys., 46 AD3d

1316, 1317 [2007]). In making such determinations, the

Comptroller's interpretation of the statute that he or she is

charged with enforcing must be upheld if it is not "'irrational,

unreasonable or inconsistent with the governing statute'" (Matter

of Brandt v DiNapoli, 126 AD3d 1165, 1167 [2015], lv denied 26

NY3d 904 [2015], quoting Matter of Whitehill v New York State

Teachers' Retirement Sys., 142 AD2d 902, 904 [1988]). It was

petitioner's burden to prove that the Retirement System

incorrectly determined that the percentage of the option

specified in the 2005 order became irrevocable on October 31,

2010 pursuant to Retirement and Social Security Law § 90 (e). 

This burden was not met.

The governing statute provides that "an option selection

previously filed by a member . . . may be changed no later than

[30] days following the date of payability of his or her

retirement allowance" (Retirement and Social Security Law § 90

[e]). The date of payability is "the first day of each and every

month beginning on the first day of the month following the

effective date of retirement" (Retirement and Social Security Law

§ 100). Petitioner's retirement became effective on September

25, 2010; thus, the date of payability was October 1, 2010, and

October 31, 2010 was 30 days after the date of payability. There

is no statutory exception permitting a retiree to change a valid
-6- 521161 

option election after the time to make such an election has

expired, and "[t]he absence of statutory prohibition does not

permit [this Court] to imply the power with which the Comptroller

must be endowed to conform legally with . . . petitioner's

present demand" (Matter of Morrissey v New York State Employees'

Retirement Sys., 298 NY 442, 449 [1949]; see Matter of O'Brien v

DiNapoli, 116 AD3d 1124, 1126 [2014]). Thus, the determination

that the option election contained in the 2005 order became

irrevocable on October 31, 2010 was neither irrational nor

unreasonable, and must be upheld. 

Petitioner's argument that he sought only a change in the

percentage of the survivorship benefit rather than a change in

the option election is without merit, as the concepts are

inseparable. An erroneous statement by respondents in a

memorandum of law submitted to Supreme Court to the effect that

the Retirement System rejected the 2011 order did not constitute

a concession or admission, but was merely a typographical error,

clearly contradicted by the record. To the extent that

petitioner's remaining arguments are not moot, they are without

merit or premised upon matters beyond the administrative record

and/or "the grounds invoked by the agency" (Matter of Rizzo v New

York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110

[2005] [internal quotation marks and citations omitted]).

Peters, P.J., Rose and Devine, JJ., concur.

ORDERED that the order and judgment is affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court