2023 New York Laws › RSS - Retirement and Social Security › Article 2 - New York State Employees' Retirement System › Title 5 - Right to Membership, Service Credit and Transfers Between Retirement Systems › 41 - Allowances for Service.

§  41. Allowances for service. a. Generally. Subject to all provisions
of law appertaining thereto and to such reasonable rules and regulations
as the comptroller shall adopt or amend in pursuance thereof,  he  shall
determine  and  may  modify allowances for service and shall issue prior
service certificates and certificates for service in war after world war
I. The comptroller, however, shall not  allow  more  than  one  year  of
credit for all service rendered in any calendar year.
b.  Allowable  service.  Only  the following types of service shall be
allowable in computing service credits:
1. Government service.
2. Prior city and county service rendered in a city of the state or in
a county within the boundaries of such city, if such city has a  pension
system allowing credit for prior state and county service.
3.  Prior  service  rendered to an employer before the latter became a
participating employer. Such credit shall be allowable immediately  upon
such employer's becoming a participating employer. The employer for whom
the  member is working at the time such prior service credit is allowed,
shall pay the contribution required to be made by an employer on account
of such credit.
4. Civil service in any capacity as an  officer  or  employee  of  the
federal  government, or military duty in the armed forces of the federal
government and not otherwise creditable,  rendered  or  performed  by  a
member  prior  to  the  time  he  last became a member. The allowance of
credit for such service shall be conditioned upon  the  receipt  by  the
retirement  system  of  all  the payments required to be made on account
thereof by section forty-two of this article.
5. Civil service rendered as an officer or  employee  of  the  federal
government as provided in subdivision d or paragraph four of subdivision
c  of  section  forty  of this article. The allowance of credit for such
service shall be conditioned upon the receipt by the  retirement  system
of  all  the  payments required to be made on account thereof by section
forty-two of this article. Except as  so  provided,  employment  by  the
federal  government  shall  not  entitle  a  person to contribute to the
retirement system during the period of such employment.
6. Any member may obtain credit for any allowable service:
(a) For which  he  made  contributions,  regardless  of  whether  such
contributions were returned to him when he left such service, or
(b)  Rendered  by him while not a member of any retirement system that
is actuarially sound and of which the state or municipality thereof is a
contributor, provided  he  makes  the  contributions  required  by  this
article for such credit and renders at least two years of member service
after he last became a member.
No  credit shall be allowed for service if, but for the member's failure
to avail himself of the privilege of transfer within the time and in the
manner provided in section forty-three of this article, credit for  such
service  could  have been obtained upon transfer from another retirement
system pursuant to such section.
c. Purchase of previous member service credit.
1. A member who has not previously been a member may  purchase  credit
at  any time for all allowable member service; provided, however, that a
member joining the system pursuant to paragraph nine of subdivision c of
section forty of this article shall not be permitted to purchase  credit
for,  or otherwise be allowed credit for the previous service upon which
his retirement or pension from another pension or retirement  system  is
or  would  be based. In order to purchase credit, which may be purchased
pursuant to this paragraph,  the  member  shall  pay  into  the  annuity
savings  fund,  either  in a lump sum or in installments, a sum equal to
the amount which would have been in such  fund  to  his  credit  had  he

actually  been a member contributing thereto during the entire period of
such previous member service. If such payment be made  in  installments,
the  same  shall  be  paid within a period no greater than the number of
months of such member service.
2.  A member who, after a previous membership, withdrew all or part of
his accumulated contributions  shall  be  credited  with  all  allowable
service rendered prior to such withdrawal, provided he:
(a)  Renders  at  least  two  years  of  member service after his last
withdrawal, and
(b) Redeposits such withdrawn amount  in  the  annuity  savings  fund,
either  in  a  lump  sum  or  in installments; provided, however, that a
member joining the system pursuant to paragraph nine of subdivision c of
section forty of this article shall not be permitted to purchase  credit
for,  or otherwise be allowed credit for the previous service upon which
his retirement or pension from another pension or retirement  system  is
or  would  be  based.  If such payment be made in installments, the same
shall be paid within a period no greater than the number  of  months  of
member service lost by such withdrawal.
d.  Credit  allowable  only  if  paid  for. In the event that a member
retires or that any benefit becomes payable because of his membership in
the retirement system prior to the completion of  all  of  the  payments
required  to  be  made  by him as a condition precedent to his obtaining
credit for member service, the amount of  his  retirement  allowance  or
such other benefits shall be based only on:
1.  The  service  rendered by him since he last became a member of the
retirement system and for which contributions have been paid by him, and
2. Any  additional  service,  all  the  conditions  precedent  to  the
crediting  of  which  have been completely fulfilled by him. However, if
the full amount of the payments required to be made by the member is not
paid to the retirement system, the amount of  service  credit  shall  be
proportional to the total amount of the payments made.
e. Waiver of membership requirement in certain cases. In the case of a
person  in  the  employ of a participating employer, the requirements in
sections sixty and seventy-five of this article that a member must  have
credit for one or more years of service as a member shall not apply if:
1.  Such  person  became  a  member within one year after his employer
became a participating employer, and
2. He was in the service of such participating employer for the entire
year previous to his retirement or death.
f. Restoration of credit in certain cases.
1. A member who has been discontinued from service through no fault of
his own and who has withdrawn his accumulated contributions  shall  have
his total service credit restored in full if:
(a)  He had less than twenty years of total service credit when he was
so discontinued, and
(b) He returns to service within ten years after such  discontinuance,
and
(c) He redeposits the total amount so withdrawn by him and
(d)  His  employer  elects to and does pay to the pension accumulation
fund an amount equal to the reserve required to cover  such  restoration
of credit.
2.  Upon  such  return to service, such member shall contribute to the
retirement system as a new member.
3. In the event such a member retires before his employer  makes  such
payment,  he  may  elect  to  receive his benefit immediately as if full
service credit were allowable. He thereupon shall be entitled to receive
the full amount of such benefit for such period as the same can be  paid
from  the  combined  reserve  available  on  his  account in the annuity

reserve fund and pension reserve fund.  When  his  employer  makes  such
payment,  his  benefit thereafter shall be continued from the reserve so
paid.
4.   The  provisions  of  this  subdivision  f  shall  be  controlling
notwithstanding any provision in this article to the contrary.
g. Prior service credit and credit for service in war after world  war
I  in certain cases. Allowable prior service credit and allowable credit
for service in war after world war I shall be granted immediately to:
1. Any member who shall have rendered at least two  years  of  service
since he last became a member.
2. Any person who is in the service of a participating employer on the
date  it approves participation and who becomes a member within one year
after such date.
The employer for whom the member is  working  at  the  time  such  prior
service  credit  or  credit  for  service  in  war  after world war I is
allowed, shall pay the contribution required to be made by  an  employer
on account of such credit.
h.  Prior  service  certificates  and  certificates for service in war
after world war I.
1. The comptroller shall issue a certificate, to be known as  a  prior
service  certificate,  to  each member entitled to prior service credit.
Such certificate shall certify the amount of such credit which shall  be
allowed in computing any pension provided for by this article.
2.  The  comptroller,  upon application, shall issue a certificate for
service in war after world war I to each member entitled  thereto.  Such
certificate  shall certify to service in war after world war I allowable
to such member.
3. The comptroller, upon application of a member at any time, or  upon
his  own initiative within one year from the date of issuance of a prior
service certificate or a certificate for service in war after world  war
I  may  modify any such certificate in accordance with the allowance for
prior service or service in war after world war I credit  to  which  the
member is shown to be entitled.
4.  A  member's  prior service certificate, certificate for service in
war after world war I, or any such certificate as modified, shall become
void upon the termination of his membership in  the  retirement  system.
Except  as  provided by subdivision d of section one hundred two of this
article, resumption  of  membership  after  such  termination  shall  be
without credit for prior service or service in war after world war I.
i. Allowances during leaves of absence without pay.
1. Time during which a member is absent on leave without pay:
(a) Shall not be included in computing prior service.
(b)  May  be  included  in  computing member service and final average
salary only if the head of  the  department  in  which  such  member  is
employed  and the comptroller allow such time for retirement purposes at
the time such leave of absence is granted.
(c) Shall be included in computing member service  and  final  average
salary  in  case  such a leave of absence was granted, during the period
from March first, nineteen hundred forty, until  six  months  after  the
termination  of  world war II, to enable the member to enter the service
of the federal government or its associated powers, or to engage in  war
work or defense industries only if:
(1)  The  fact  that  such  service was rendered is established to the
satisfaction of the comptroller, and
(2) Such member shall have notified the comptroller in writing, on  or
before  July  first,  nineteen  hundred  forty-seven, or within one year
after such leave of absence was granted, that he claims  member  service
credit pursuant to the provisions of this subparagraph (c), and
(3) Such member, within a period not greater than the number of months
during which he was on leave of absence, shall pay into:
(aa)  The annuity savings fund such amounts as would have been in such
fund to his credit had he remained in the  performance  of  his  regular
duties  as  a member at the same salary he was receiving when such leave
of absence was granted, and
(bb) The pension accumulation fund such amounts as would have been  in
such fund had he remained in the performance of his regular duties. Such
amounts  shall  be  determined by the actuary and shall be sufficient to
pay the contribution that the state or a  participating  employer  would
have  paid  for  an  ordinary  death benefit and for that portion of the
pension provided for in paragraph two of subdivision a or paragraph  two
of  subdivision  b  of  section seventy-five of this article for service
during such period.
(d) Shall be included in computing member service  and  final  average
salary  in case such a leave of absence commenced during the period from
April first, nineteen hundred sixty-six through June thirtieth, nineteen
hundred seventy-four, and was granted for a period of not more than  two
years  to enable the member to perform services as a civilian officer or
employee of  the  Federal  government  or  one  of  its  agencies  or  a
contractor  of  the  United  States Agency for International Development
engaged to perform the work of such  agency,  the  United  Nations,  any
other  international  organization of which the United States of America
is a member, or a foreign government only if:
(1) The comptroller allows  inclusion  of  such  time  for  retirement
purposes at the time such leave of absence is granted, and
(2)  Payment during such leave of absence or within one year after the
end of such leave of absence is made by the employee into:
(aa)  The  annuity  savings  fund  of  contributions  equal   to   the
contributions which the member would have made during the period of such
leave of absence had he been performing his regular duties, and
(bb)  The pension accumulation fund of a further contribution equal to
the contribution which his employer would have made on his behalf during
the period of such leave of absence had he been performing  his  regular
duties.  The  payments  required  by  this  item (bb) may be made on the
member's behalf by the organization employing him during such  leave  of
absence.
2.  In  the  event that, during a leave of absence granted pursuant to
subparagraph (c) of paragraph one of this subdivision i
(a) The position of such  member  is  abolished  or  made  unnecessary
through  no delinquency or misconduct on his part, such leave of absence
shall be deemed to continue until six months after  the  termination  of
world  war II and such member may continue his contributions and receive
credit therefor during such period.
(b) A disability or injury of such member occurs, he shall be entitled
only to the return of his contributions.
(c)  The  death  of  such  member   occurs,   his   beneficiaries   or
representatives  shall be entitled only to the return of his accumulated
contributions and the ordinary death  benefit,  if  such  benefit  would
otherwise be payable.
3. In the event that a member, who made contributions pursuant to such
subparagraph  (c),  is separated from service before he becomes eligible
for a retirement allowance or a death benefit,  all  such  contributions
and  his  accumulated  contributions  shall be returned to him or to his
beneficiaries or representatives.
j. Allowance for unused sick leave for members in the  employ  of  the
state.
1.  In  addition  to  any  other  service credit to which he or she is
entitled, a member who meets the requirements set  forth  in  paragraphs
two and three of this subdivision shall be granted one day of additional
service credit for each day of accumulated unused sick leave which he or
she has at time of retirement for service, but such credit shall not (a)
exceed  one  hundred  sixty-five  days, (b) be considered in meeting any
service or age requirements prescribed  in  this  chapter,  and  (c)  be
considered  in computing final average salary. However, for an executive
branch member designated managerial or confidential pursuant to  article
fourteen of the civil service law or in the collective negotiating units
established  by article fourteen of the civil service law designated the
professional,  scientific  and  technical  services   unit,   the   rent
regulation  services negotiating unit, the security services negotiating
unit, the security supervisors negotiating unit,  the  state  university
professional  services  negotiating  unit,  the  administrative services
negotiating unit,  the  institutional  services  negotiating  unit,  the
operational  services  negotiating unit and the division of military and
naval  affairs  negotiating  unit  and,  effective  on  and  after  June
twenty-seventh,  two  thousand  seventeen for the agency police services
unit such service credit limitation provided in subparagraph (a) of this
paragraph shall not exceed two hundred days. For a  nonjudicial  officer
or  employee of the unified court system not in a collective negotiating
unit or in a collective negotiating unit specified  in  section  one  of
chapter  two  hundred  three  of  the  laws  of  two  thousand four, for
employees of the New York state dormitory authority,  for  employees  of
the  New  York  state  thruway  authority,  the  New  York  state  canal
corporation and the state university construction fund and for employees
of the New  York  liquidation  bureau  such  service  credit  limitation
provided  in  subparagraph  (a)  of  this paragraph shall not exceed two
hundred  days.  For  members  who  first  become  members  of  a  public
retirement  system  of  the  state on or after April first, two thousand
twelve, such credit shall not exceed one hundred days.
2. Such service retirement credit shall be granted only to members  in
the employ of the state who, prior to retirement, were subject to a plan
established  by  law,  rule, regulation, written order or written policy
which provided for the regular earning and accumulation of sick leave.
3. In the case of persons who last became members  on  or  after  July
first,   nineteen   hundred   seventy-three,   the  provisions  of  this
subdivision shall apply only to those retiring  from  service  prior  to
July first, nineteen hundred seventy-four.
k.  Credit  for certain world war II service. 1. In addition to credit
for  military  service  as  defined  in  paragraph  one  of  subdivision
thirty-one of section two of this chapter, a member in the employ of the
state  as  of  March  thirty-first, nineteen hundred seventy, may obtain
credit for military service as defined in paragraph two  of  subdivision
thirty-one  of  section  two  of  this  chapter  in  accordance with the
provisions of this subdivision.
2. To obtain such credit a member shall: (a) deposit  in  the  annuity
savings  fund  a  sum  equal  to  the  product  of  his  normal  rate of
contribution at time of entry into state service,  his  annual  rate  of
compensation  at  that  time,  and  the period of military service being
claimed,  with  regular  interest,  and  (b)  deposit  in  the   pension
accumulation  fund  a  sum  equal  to  the product of the state's normal
contribution rate at the time of the member's entry into  such  service,
his annual rate of compensation at that time, and the period of military
service  being claimed, with regular interest. Such deposit must be made
on or before March thirty-first, nineteen hundred seventy-two, provided,
however, such member may elect to deposit such amount over a  period  of

time  no  greater  than the period for which credit is being claimed, in
which case such payments must commence no later than March thirty-first,
nineteen hundred seventy-two. If the full amount of such payments is not
paid  to  the retirement system, the amount of service credited shall be
proportional to the total amount of the payments made.
3. (a) A member who enters the employ of the state on or  after  April
first,  nineteen  hundred  seventy  and  prior  to April first, nineteen
hundred seventy-two shall have one year from his date of entry  to  make
application  and payment for such service in the manner specified above.
The salary base for such  an  employee  shall  be  his  annual  rate  of
compensation at the time of his entry into state service.
(b)  A  member  who reenters the employ of the state on or after April
first, nineteen hundred seventy  and  prior  to  April  first,  nineteen
hundred seventy-two shall have one year from his date of reentry to make
application  and payment for such service in the manner specified above.
The salary base for such payments shall be  either  the  employee's  (i)
annual  rate  of  compensation  at  the time of original entry into such
service or (ii) his annual rate of compensation upon reentry  into  such
service, whichever would result in the greater contributions.
4.  Such  credit  for military service shall not be used to increase a
service retirement benefit if at the time of retirement such member  (a)
is  retiring  from  service  with  less  than ten years of total service
credit, or (b) is retiring with less than three years of member  service
rendered  subsequent  to the date of last entry into state service; upon
retirement as specified in (a) or (b), there shall be refunded  to  such
member the amount of such deposit plus accrued interest exclusive of the
amount  deposited to the pension accumulation fund attributable to death
and disability benefits.
5. For the purposes of this subdivision the member's  normal  rate  of
contribution  in  the  case  of  an employee of the state who (a) enters
service on or after the date that employee  contributions  were  reduced
pursuant  to  section  seventy-a  or when no employee contributions were
required shall be based on the latest schedule  of  normal  contribution
rates  in effect for employees of the state, and shall be set as if such
schedule had been in effect at the time of his entry into state service,
or (b) transfers into the retirement system shall not be less  than  the
rate  the  member  would  have had if all his service, exclusive of that
being claimed pursuant to this  subdivision,  had  been  rendered  as  a
member of the retirement system.
6. In no event shall credit be granted pursuant to this subdivision if
credit  is  granted  for  the  same  period  of  time  pursuant to other
provisions of law.
7. Subject to the provisions of paragraph three of this subdivision no
application for credit pursuant to the provisions  of  this  subdivision
shall  be  honored  if  made  on  or after April first, nineteen hundred
seventy-two.
8. A member may direct, upon a form prepared by the comptroller,  that
his excess contributions be applied toward the payments required by this
subdivision.  The  term  excess  contributions  shall  mean  accumulated
contributions in excess of the amount  thereof  required  to  provide  a
pension  or  retirement  allowance. Appropriate transfers and credits to
the annuity savings fund and the pension accumulation fund will be  made
in  the  manner  set  forth  in  an  official  regulation adopted by the
comptroller for such purpose.
* l. Employer pick-up of contributions in respect of previous  service
or  military  service.  Notwithstanding  any other provision of law, any
member eligible to purchase credit for previous service  with  a  public
employer  pursuant to this section or section forty-two of this title or

to purchase credit for military service pursuant to  article  twenty  of
this  chapter,  may  elect  to  purchase  any  or all of such service by
executing a periodic payroll deduction agreement where and to the extent
such  elections  are  permitted  by  the  retirement  system  by rule or
regulation.   Such agreement shall set  forth  the  amount  of  previous
service or military service being purchased, the estimated total cost of
such  service  credit,  and  the number of payroll periods in which such
periodic payments shall be made. Such agreement  shall  be  irrevocable,
shall  not  be  subject  to amendment or modification in any manner, and
shall  expire  only  upon  completion  of  payroll  deductions  required
therein.  Notwithstanding the foregoing, any member who has entered into
such  a  payroll deduction agreement and who terminates employment prior
to the completion of the payments required  therein  shall  be  credited
with   any  service  as  to  which  such  member  shall  have  paid  the
contributions required under the terms of the agreement.
* NB Takes effect upon notice of ruling by Internal Revenue Service --
expires per ch. 627/2007 §22