State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 523133 

________________________________

In the Matter of MAUREEN J.

McCAULEY,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE AND LOCAL

EMPLOYEES' RETIREMENT SYSTEM 

et al.,

Respondents.

________________________________

Calendar Date: November 14, 2016

Before: McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

__________

Maureen J. McCauley, Albany, appellant pro se.

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

Storrs of counsel), for New York State and Local Employees'

Retirement System, respondent.

John T. Biscone, Ravena, for Estate of Richard Ely,

respondent. 

__________

McCarthy, J.P.

Appeal from a judgment of the Supreme Court (McGrath, J.),

entered July 20, 2015 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of the Comptroller denying

petitioner's request for retirement death benefits.

Petitioner and Richard Ely (hereinafter decedent) were

married in 1970. Decedent was employed by the Division of
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Criminal Justice Services and was a member of respondent New York

State and Local Employees' Retirement System. During decedent's

membership, he completed three forms designating petitioner as

the primary beneficiary of his retirement benefits, including

retirement death benefits, with the most recent form dated May

14, 1992. Thereafter, on August 30, 1999, petitioner and

decedent entered into a separation agreement that was ultimately

incorporated, but not merged, into a divorce judgment, issued on

May 28, 2004. 

Decedent died on October 20, 2009. At the time of

decedent's death, petitioner was still listed as the primary

beneficiary of decedent's retirement death benefits, with

decedent's parents, both of whom were deceased, as alternative

beneficiaries. Petitioner then sought to receive decedent's

death benefits. The Retirement System advised that, pursuant to

EPTL 5-1.4, decedent's May 14, 1992 benefit designation was

revoked. In September 2010, an executor was appointed to

represent respondent Estate of Richard Ely (hereinafter the

estate). A hearing was then held on petitioner's application,

and an Administrative Law Judge concluded that petitioner failed

to meet her burden of proving her entitlement to decedent's

retirement death benefits. The Comptroller subsequently adopted

the decision of the Administrative Law Judge and denied

petitioner's application. Petitioner commenced this CPLR article

78 proceeding. Supreme Court found, among other things, that

petitioner's request was properly denied under EPTL 5-1.4. 

Subsequently, petitioner appealed from that judgment, wherein

this Court reversed the judgment and remitted the matter for

Supreme Court to join the estate as a necessary party or to

permit joinder by stipulation or motion (112 AD3d 1211, 1212

[2013]). The parties stipulated to joinder of the estate and the

court granted all parties additional time to submit further

memoranda. Thereafter, Supreme Court again dismissed the

petition. Petitioner appeals, and we affirm. 

Pursuant to EPTL 5-1.4, the Comptroller properly denied

petitioner's application for decedent's retirement death

benefits. EPTL 5-1.4 (a) provides that "[e]xcept as provided by

the express terms of a governing instrument, a divorce . . .

revokes any revocable . . . disposition or appointment of
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property made by a divorced individual to, or for the benefit of,

the former spouse."1 Such a disposition is to be interpreted as

though "the former spouse had predeceased the divorced individual

as of the time of the revocation" (EPTL 5-1.4). According to

legislative history, the pertinent amendment to EPTL 5-1.4, which

was enacted prior to decedent's death, "would take effect

immediately and shall apply [to a] disposition [that] takes

effect only at the death of the person who executes it and such

person dies on or after the effective date of this act" (Senate

Introducer Mem in Support, Bill Jacket, L 2008, ch 173). 

Moreover, "EPTL 5-1.4 was enacted to prevent a [decedent's]

inadvertent disposition to a former spouse where the parties'

marriage terminated by annulment or divorce and the former spouse

is a beneficiary in a[n] . . . instrument which the [decedent]

neglects to revoke" (Matter of Schmeid, 88 AD3d 803, 804 [2011]). 

Therefore, according to the plain language of the EPTL 5-1.4 and

legislative history, the statute applies to dispositions such as

the one made by decedent and to persons who, like decedent, died

after the amendment to the statute. Thus, as a matter of law,

petitioner is not entitled to decedent's retirement death

benefits (see id.).

Further, and contrary to petitioner's contention, the

application of EPTL 5-1.4 in this manner does not give the

statute retroactive effect. "Retroactive statutes are those

which impair vested rights or alter past transactions or

considerations" (Matter of Scism v Fiala, 122 AD3d 1197, 1198

[2014] [internal quotation marks and citation omitted]). "A

statute is not retroactive . . . when made to apply to future

transactions, merely because such transactions relate to and are

founded upon antecedent events" (Matter of Allied Grocers Coop. v

Tax Appeals Trib., 162 AD2d 791, 792 [1990] [citations omitted]). 

Decedent could have altered his death benefits up until his

death, which occurred after the relevant amendment to EPTL 5-1.4,

and petitioner had no vested right to the death benefits at any

1 Petitioner does not dispute the fact that the retirement

death benefits designation does not contain express terms that

would prevent the revocation of the benefit in these

circumstances. 
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time prior to that amendment (see Blackmon v Estate of Battcock,

78 NY2d 735, 739 [1991]; Matter of Scism v Fiala, 122 AD3d at

1198). 

Finally, additional proof established that petitioner

affirmatively waived any right to the death benefits in the

separation agreement. "It is well established that the terms of

a separation agreement incorporated, but not merged, into a

judgment of divorce are contractually binding on the parties"

(Matter of Levinson v Levinson, 298 AD2d 673, 674 [2002]

[citations omitted]; see Matter of Stewart v Stewart, 93 AD3d

907, 908 [2012]). "A stipulation between parties is an

independent contract subject to the principles of contract

interpretation, including the rule requiring courts to discern

the parties' intent from the four corners of the stipulation

without regard to extrinsic evidence when the contract language

is unambiguous" (Matter of Black v New York State & Local

Employees' Retirement Sys., 30 AD3d 920, 921 [2006] [citations

omitted]). According to the separation agreement between

petitioner and decedent, the parties waived "any claim in and to

the pension of the other," and that "[e]ach pension shall

hereafter be the sole and separate property of the respective

parties and each waives his or her claim to any and all other

rights, including survivorship benefits." Accordingly, by the

unambiguous terms of the separation agreement (see Matter of

Sbarra, 17 AD3d 975, 977 [2005]), petitioner explicitly waived

survivorship benefits. Petitioner's remaining contentions are

without merit.

Garry, Rose, Mulvey and Aarons, JJ., concur.
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ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court