Duffy v. Dinkins

Appellate Division of the Supreme Court of New York

Duffy v. Dinkins

190 A.D.2d 619

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 23, 1993

StatusPublished

Cited by5 cases

This text of 190 A.D.2d 619 (Duffy v. Dinkins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duffy v. Dinkins, 190 A.D.2d 619 (N.Y. Ct. App. 1993).

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Opinion

— Judgment, Supreme Court, New York County (Alfred Toker, J.), entered June 1, 1992, which dismissed the petition, brought pursuant to CPLR article 78, requesting that petitioners, upon transfer to the New York City Police Department pursuant to chapter 675 of the Laws of 1991, are immediately entitled to participate in the Police Officer’s Variable Supplements Fund (“POVSF”) and receive benefits therefrom upon retirement as of the date of their appointments to the Transit Police Department, and which also sought a declaration that, upon their transfer, they are entitled to transfer their seniority rights, including rights for vacation selection purposes, unanimously affirmed, without costs.

[620]*620The determination herein was not arbitrary or capricious as the transfer statute clearly provided that transfers "shall be governed by the provisions of applicable law” (L 1991, ch 675, § 5). The applicable law provides that an officer must be a member of the Police Pension Fund in order to receive POVSF benefits (Administrative Code of City of NY § 13-271 [a] [1]; § 13-268 [5]), and that, as transferees, they would not become members until 1992, and then would only qualify for Tier B benefits and not Tier A benefits upon retirement (Administrative Code § 13-271). Nor can the law allowing for retroactive credit in the Pension Fund assist petitioners herein (Administrative Code § 13-143 [b]), as the statute creating the POVSF specifically provides that it is not to be construed as a pension fund (Administrative Code § 13-269 [b]; Poggi v City of New York, 109 AD2d 265, affd 67 NY2d 794).

As the transfer statute also provided that chief administrative officers promulgate rules and regulations necessary to implement the transfers (L 1991, ch 675, §8), the court also properly refused to intervene in legitimate agency rule-making authority with respect to seniority rights (see, Matter of Bates v Toia, 45 NY2d 460, 464). Concur — Milonas, J. P., Ellerin, Kassal and Rubin, JJ.

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— Judgment, Supreme Court, New York County (Alfred Toker, J.), entered June 1, 1992, which dismissed the petition, brought pursuant to CPLR article 78, requesting that petitioners, upon transfer to the New York City Police Department pursuant to chapter 675 of the Laws of 1991, are immediately entitled to participate in the Police Officer’s Variable Supplements Fund (“POVSF”) and receive benefits therefrom upon retirement as of the date of their appointments to the Transit Police Department, and which also sought a declaration that, upon their transfer, they are entitled to transfer their seniority rights, including rights for vacation selection purposes, unanimously affirmed, without costs.

[620]*620The determination herein was not arbitrary or capricious as the transfer statute clearly provided that transfers "shall be governed by the provisions of applicable law” (L 1991, ch 675, § 5). The applicable law provides that an officer must be a member of the Police Pension Fund in order to receive POVSF benefits (Administrative Code of City of NY § 13-271 [a] [1]; § 13-268 [5]), and that, as transferees, they would not become members until 1992, and then would only qualify for Tier B benefits and not Tier A benefits upon retirement (Administrative Code § 13-271). Nor can the law allowing for retroactive credit in the Pension Fund assist petitioners herein (Administrative Code § 13-143 [b]), as the statute creating the POVSF specifically provides that it is not to be construed as a pension fund (Administrative Code § 13-269 [b]; Poggi v City of New York, 109 AD2d 265, affd 67 NY2d 794).

As the transfer statute also provided that chief administrative officers promulgate rules and regulations necessary to implement the transfers (L 1991, ch 675, §8), the court also properly refused to intervene in legitimate agency rule-making authority with respect to seniority rights (see, Matter of Bates v Toia, 45 NY2d 460, 464). Concur — Milonas, J. P., Ellerin, Kassal and Rubin, JJ.

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190 A.D.2d 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duffy-v-dinkins-nyappdiv-1993.

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