Buric v. Kelly

78 A.D.3d 594, 910 N.Y.S.2d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered January 6, 2009, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 seeking to annul respondents’ determination that petitioner be retired with ordinary disability retirement benefits, unanimously affirmed, without costs.

The court’s findings of fact, based in large measure on its assessment of the credibility of the witnesses, that petitioner’s election to file for a service retirement was voluntary and not the result of fraud, duress, coercion, or other misconduct on respondents’ part, are supported by a fair interpretation of the record evidence (see e.g. Matter of De Marco v McLaughlin, 49 NY2d 941 [1980]; Matter of Girard v Board of Educ. of City School Dist. of City of Buffalo, 168 AD2d 183 [1991]). There is no basis to override the court’s determination that respondents’ witnesses were credible in denying that petitioner was told that he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.

To the extent petitioner argues that he was given two unpalatable choices, or that he chose the service retirement due to financial considerations, neither constitutes duress (see Matter of Wolfe v Jurczynski, 241 AD2d 88, 90 [1998]; Matter of Donato v Mills, 6 AD3d 966, 967-968 [2004]). Concur — Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.