NY Ret & SS L § 443 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 11 - Limitations Applicable to New Entrants 443 - Final Average Salary.

§  443.  Final  average  salary.  a.  The  salary  base  used  for the   computation of benefits upon  retirement,  hereinafter  called  in  this   article   final  average  salary,  applicable  to  all  members  of  the   retirement systems who are subject to the provisions  of  this  article,   shall  be  the  average  salary earned by such a member during any three   consecutive years which provide the highest average salary, exclusive of   any form of termination pay (which shall  include  any  compensation  in   anticipation  of  retirement),  or  any  lump  sum  payment for deferred   compensation, sick leave, or accumulated vacation credit, or  any  other   payment  for  time not worked (other than compensation received while on   sick leave or authorized leave of absence); provided,  however,  if  the   salary  or  wages  earned during any year included in the period used to   determine final average salary  exceeds  that  of  the  average  of  the   previous  two  years by more than twenty percentum, the amount in excess   of twenty percentum shall be excluded  from  the  computation  of  final   average  salary. Where the period used to determine final average salary   is the period which immediately precedes the  date  of  retirement,  any   month  or  months  (not  in  excess  of twelve) which would otherwise be   included in computing final average salary but during which  the  member   was  on  authorized leave of absence at partial pay or without pay shall   be excluded from the computation of final average salary and  the  month   or  an equal number of months immediately preceding such period shall be   substituted in lieu thereof.b. Notwithstanding the provisions of subdivision a  of  this  section,   with  respect to the members of the New York state employees' retirement   system, the New York state and local police and fire  retirement  system   and  the  New  York  city teachers' retirement system, the final average   salary, shall be equal to one-third of the highest total  salary  earned   during  any  continuous  period  of  employment for which the member was   credited with three years of service credit, exclusive of  any  form  of   termination pay (which shall include any compensation in anticipation of   retirement), any lump sum payment for deferred compensation, sick leave,   or accumulated vacation credit, or any other payment for time not worked   (other  than  compensation  received  while  on sick leave or authorized   leave of absence); provided, however, if the salary  earned  during  any   year  of credited service included in the period used to determine final   average salary exceeds the average of the salaries of the  previous  two   years  of credited service by more than twenty per centum, the amount in   excess of twenty per centum shall be excluded from  the  computation  of   final average salary.c.  Notwithstanding  the  provisions  of  subdivisions a and b of this   section, with respect to police officers and firefighters as defined  in   section  four hundred fifty of this chapter, the final average salary of   an employee who has been a member of a retirement system for  less  than   one  year  shall  be the projected one year salary, with the calculation   based upon a twelve month projection of the sums earned in  the  portion   of the year worked. If a member has been employed for more than one year   but less than two years, then the member's final average salary shall be   the  average  of the first year and projected second year earnings based   upon the calculation above, and if more than two years,  but  less  than   three  years,  then  one-third  the  total  of  the  first  two years of   employment plus the  projected  third  year's  earnings,  calculated  as   indicated above.d.  Notwithstanding  the  provisions  of  subdivisions a and b of this   section, the final average salary of an employee who has been  a  member   of  the  New York city employees' retirement system or the New York city   teachers' retirement  system  for  less  than  one  year  shall  be  the   projected  one  year  salary,  with  the calculation based upon a twelve    month projection of the sums earned in the portion of the  year  worked.   If  a  member has been employed for more than one year but less than two   years, then the member's final average salary shall be  the  average  of   the  first  year  and  projected  second  year  earnings  based upon the   calculation above, and if more than  two  years,  but  less  than  three   years,  then  one-third  the  total of the first two years of employment   plus the projected third year's earnings, calculated as indicated above.e. Subject to the provisions of subdivision d  of  this  section,  and   notwithstanding  the  provisions  of subdivision a of this section, with   respect to members of the New York city employees' retirement system and   the New York city board of education retirement system who  are  subject   to  the  provisions  of  this article, the final average salary shall be   determined pursuant to the provisions of paragraph twelve of subdivision   e of section 13-638.4 of the administrative code  of  the  city  of  New   York.f.  Notwithstanding  the provisions of subdivisions a, b and c of this   section, a participating employer may elect, pursuant to the  provisions   of  paragraph d of subdivision nine of section three hundred two of this   chapter, to have the provisions of such paragraph apply  to  the  police   officers  and  firefighters  in  its  employ  who  are  subject  to  the   provisions of this article.f-1. A demand in collective negotiations for  the  additional  pension   benefit  provided  by subdivision f of this section shall not be subject   to the provisions of paragraph (b) or (c) of subdivision four of section   two hundred nine of the civil service law,  nor  shall  such  demand  be   subject to any provision for interest arbitration contained in any local   law, resolution or ordinance adopted by any governmental entity pursuant   to  subdivision  one  of section two hundred twelve of the civil service   law.g. Notwithstanding the provisions of subdivisions  a  and  c  of  this   section,  the  benefits for the first twenty years or less of service of   members of the New York city police pension fund,  subchapter  two,  who   are  subject  to the provisions of this article, and members of the fire   department  pension  fund,  subchapter  two,  who  are  subject  to  the   provisions  of  this article, shall be determined by using a salary base   equal to the salary earned by such member  during  the  one-year  period   immediately  prior  to  retirement  or  separation  from  service due to   vesting, exclusive of any form of termination pay (which  shall  include   any compensation in anticipation of retirement), or any lump sum payment   for  deferred  compensation, sick leave, or accumulated vacation credit,   or any other payment  for  time  not  worked  (other  than  compensation   received  while on sick leave or authorized leave of absence); provided,   however, if the salary  or  wages  earned  during  the  one-year  period   immediately  prior  to  retirement  or  separation  from  service due to   vesting exceeds that of the previous one-year period by more than twenty   per centum, the amount in excess of twenty per centum shall be  excluded   from  the  computation  of  final  average  salary. In determining final   average salary, any month or months (not in excess of three) which would   otherwise be included in computing final average salary but during which   the member was on authorized leave  of  absence  without  pay  shall  be   excluded  from  the computation of final average salary and the month or   an equal number of months immediately preceding  such  period  shall  be   substituted in lieu thereof.h.  Notwithstanding  any  general,  special  or  local  law,  charter,   administrative code, agreement, resolution or rule or regulation to  the   contrary,  the  salary  base  for  members  of the city of New York fire   department pension fund whose employment with the fire department of the   city of New York commenced on or after the first of July,  two  thousand    to  whom  this article otherwise applies shall be determined in the same   manner as the salary base for members of  the  city  of  New  York  fire   department pension fund whose employment with the fire department of the   city of New York commenced before the first of July, two thousand.