Cunningham v. Regan

105 A.D.2d 922, 481 N.Y.S.2d 897, 1984 N.Y. App. Div. LEXIS 21035

Opinions

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller which denied petitioner’s application for ordinary disability retirement benefits.

Petitioner, employed as a nurse by the New York State Office of Mental Health at King’s Park Psychiatric Center since November of 1966, sustained an injury on October 30, 1979 which prevented her from returning to work. Occupational injury leave with pay (OILWP) was initially denied and a contract grievance was filed. Pursuant to a settlement agreement dated April 9, 1981, petitioner withdrew her request for arbitration and was accorded retroactive OILWP from October 30, 1979 to April 30, 1980, permitted further leave accruals until July 2, 1980, and subsequent to July 3, 1980 was granted disability leave without pay, the duration of which was “subject to all applicable provisions of the Civil Service Law, Rules and Regulations concerning leave without pay”. By letter dated April 14, 1981, the employer notified petitioner that her disability leave extended from July 3, 1980 through December 30, 1980, at which point she was deemed terminated from service. Thereafter, petitioner’s application for ordinary disability retirement dated January 7, 1981 was rejected by the Comptroller after a hearing on the ground that her employment effectively terminated December 30, 1980, and that she was not actually in service at the time her application was filed (Retirement and Social Security Law, § 62, subd aa, par 2).

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This court recently confirmed that the language of section 62 of the Retirement and Social Security Law “leaves no room for interpretation” (Matter of Elsasser v Regan, 99 AD2d 875, affd 63 NY2d 647). The statute necessitates that the member “[a]ctually be in service”, whether actually working or on authorized medical leave, at the time the application is made (Matter of Murphy v Regan, 85 AD2d 819, app dsmd 56 NY2d 644, mot for lv to app den 56 NY2d 508; Matter of O’Neil v Regan, 78 AD2d 478, 479, mot for lv to app den 54 NY2d 602). In her brief, petitioner does not attempt to challenge her discharge as wrongful, but contends that the Comptroller (1) was required to review her application on the basis of the facts as they existed at the time her application was filed on January 7, 1981, and (2) was not authorized to consider the terms of the subsequent settlement agreement, particularly the retroactive termination date of December 30, 1980. We disagree.

The Comptroller is vested with exclusive authority to determine applications for retirement benefits (Retirement and Social Security Law, § 374, subd b), and where supported by substantial evidence, his determinations must be upheld (see Matter of Rovegno v Regan, 103 AD2d 877). It was not unreasonable for the Comptroller to base his determination on the operative facts effected by the settlement agreement, which established a termination of petitioner’s service as of December 30, 1980. Petitioner does not contend that the employer abused its discretion in discharging her (see 4 NYCRR 5.2 [b]). Petitioner was on unauthorized leave and thus not in service on January 7, 1981 for purpose of making a retirement application (see 2 NYCRR 309.4). We find nothing in the record to substantiate petitioner’s contention that the Comptroller deliberately delayed a review of her application. There is substantial evidence to support the Comptroller’s determination that petitioner’s application was not filed while she was actually in service (Matter of Foss v Regan, 88 AD2d 1005).

Determination confirmed and petition dismissed, without costs. Kane, J. P., Casey, Weiss and Yesawich, Jr., JJ., concur.

Petitioner does not contest the denial of her application for accidental disability retirement made at the same time.